Public Bill Committee

[Ann Winterton in the Chair]

Clause 73

Gender pay gap information

Amendment proposed (this day): 14, in clause 73, page 55, line 19, at end insert
( ) the Armed Forces;
( ) the Security Service, the Secret Intelligence Service or the Government Communications Headquarters;.(John Penrose.)

Question again proposed, That the amendment be made.

Ann Winterton: I remind the Committee that with this we are discussing the following: amendment 13, in clause 73, page 55, line 20, leave out paragraph (b).
Government amendment 67

Vera Baird: Welcome back to the Committee, Lady Winterton. I believe that I had dealt with the specific technical points raised by amendments 13 and 14 and explained Government amendment 67, but Conservative Members made it clear that they intended to use their amendments to probe the bigger point that relates to clause 73 and question why the clause does not apply to the public sector.
The Bills purpose is not to compare the private and public sectors, like for like. The Governments approach to the public sector is to impose an equality duty on it. One of the things that entails is for public authorities to demonstrate their compliance by reporting on their gender pay gap, though that has not been in the requirement. The proper place for detailed public sector requirements is in secondary legislation under clause 147, which we will debate in due course. That gives us flexibility to amend the requirements, should experience suggest that that is necessary.
The reporting requirement should not be seen in isolation. It relates to a number of things that public authorities should do to advance equality, foster good relations and eliminate discrimination, which are the terms of the duty. So we are not singling it out from the other specific duties. In that way, the requirement to be transparent about gender pay is firmly anchored in the wider requirements on the public sector.
To single out that requirement by also subjecting the public sector to clause 73 would introduce a sort of unwarranted double jeopardy situation. Public authorities that do not comply with their duty obligations will be subject to Equality and Human Rights Commission compliance notices, which are enforceable in the civil courts. It would be overkill to hit them with civil and criminal action under clause 73. It would also not make much sense.
The intention is that the duties will begin to operate from April 2011, which is two years before the power under clause 73 might be used. The duty on the public sector is more stringent. The equality duty requires it to have due regard to the need to advance equality, eliminate discrimination and foster good relations. As part of that, public authorities with more than 150 employees will report their gender pay gaps and other relevant metrics. As I have already explained, I would not want to lower the 250-or-more employee threshold in clause 73 to match that of the public sector.
If the suggestion is to replace the duty and pull it out of the single equality duty by putting public authorities under clause 73, it would be a regressive step for public sector accountability. Our detailed proposals for the specific duties are set out in the document, Equality Bill: Making it work. Policy proposals for specific duties, which we published on 11 June. That sets out specific duties to enable public authorities to carry out the equality duty more effectively. The closing date for that consultation is 30 September, and we hope to receive contributions from members of the Committee. We aim to publish our response before the end of the year.
I hope that that satisfies Conservative Members that we have gone in the right direction in putting the onus on gender pay reporting in the equality duty, with all its other characteristics, and not involving the public sector in clause 73.

John Penrose: It is a pleasure to see you in the Chair, Lady Winterton. Based on the Ministers response, we are quite content. We were most concerned to ensure that there would not be one law for the public sector and another for the private sector. In fact, that may still be so, but there will be a slightly tougher regime for the public sector. In that case, we have no objections, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 67, in clause 73, page 55, line 20, at end insert
( ) a government department or part of the armed forces not specified in that Schedule.. (The Solicitor-General.)

This amendment would exclude the security and intelligence agencies and GCHQs military helpers from the scope of Clause 73. As a result, that clause would not apply to any government department or any part of the armed forces.

Question proposed, That the clause stand part of the Bill.

Ann Winterton: With this it will be convenient to discuss new clause 9Disability pay gap information
(1) A Minister of the Crown may by regulations require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of employees who have a disability and employees who do not have a disability.
(2) This section does not apply to
(a) an employer who has fewer than 250 employees;
(b) a person specified in Schedule 19.
(3) The regulations may prescribe
(a) descriptions of employer;
(b) descriptions of employee;
(c) how to calculate the number of employees that an employer has;
(d) descriptions of information;
(e) the time at which information is to be published;
(f) the form and manner in which it is to be published.
(4) Regulations under subsection (3)(e) may not require an employer, after the first publication of information, to publish information more frequently than at intervals of 12 months.
(5) The regulations may make provision for a failure to comply with the regulations
(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;
(b) to be enforced otherwise than as an offence, by such means as is prescribed.
(6) The reference to a failure to comply with the regulations includes a reference to a failure by a person acting on behalf of an employer..

John Penrose: During our morning sitting, when we were considering the earlier groups of amendments to the clause, we had a reasonable debate on some of its principles. I shall try to be brief, because we have given at least some of them a fair airing already. However, I want to put a couple of additional points on the record.
When I started investigating the history of the gender pay gap, I was fascinated to discover that there is something of a success story to be mentioned. That is not to say that the job is all donefar from it, there is still a serious issue, and let no one be under any illusion about its severity or importancebut it is worth while pointing everyone here and the wider world outside to the figures in The gender pay gap in the UK study, which the Office for National Statistics published in April 2008. Interestingly, figure 5 shows that the gender pay gap has declined from not quite 30 per cent. in 1975the first year that the Equal Pay Act 1970 came into effectto just under 13 per cent. in 2006. It has pretty nearly halvedalbeit at a rather slow and steady, almost stately paceover the intervening 31 years covered by the study.
It is clearly true that we have made great progress as a country, under successive Governments of different stripes, but also that there is a great deal further to go. It is interesting, looking at figure 6 in the same report, to see that the gender pay gap for full-time employees by age has declined very dramatically for people under 33. In fact, for employees under 33 the gender pay gap is now zeroor was in 2006compared to 1975, when it was significantly higher.
It is therefore important for us all to realise that, contrary to what some people have said in the evidence that we have received, it is not fair to say that the current measures are not working. They clearly have been working over an extended period. That does not mean that there is not further to go and that progress has not been stately, as I said earlier, but this country should be proud of its track record, while none the less pointing out that an injustice remains to be dealt with.

Evan Harris: The hon. Gentleman will know that his figures are controversial in concentrating only on the full-time aspect, but I understand that he wants to make a point. Would he accept that, even given those figures, it might be argued that the existing legislation and the existing framework have done all that they can in those 30-plus years and that something more is now needed to finish off the job? If the existing law was going to work, it would probably have worked by now.

John Penrose: I thank the hon. Gentleman for his intervention for two reasons. First, I was about to allude to his point of always having to be careful about using statistics. Anyone can make mistakesthe Secretary of State herself was picked up by Sir Michael Scholar, the head of the UK Statistics Authority, in a letter reported in The Daily Telegraph on 12 June in which he enjoined her to use the statistics rather more carefully than she had been doing. The hon. Gentleman is right to point out that we must be careful to define precisely to which statistics we are referring.
Secondly, on whether the existing measures are effectively spent or have run out of steam, we would need a significant period in which the steady decline of over 31 years went into reverse or flattened out. Certainly, until the end of 2006the figures that I am quotingthe decline was pretty constant. One can look at the figures and say that they are not flattening out but coming down steadily. There are more recent figures[Interruption] Perhaps the hon. Member for Hornsey and Wood Green will fill us in.

Lynne Featherstone: EHRC statistics show that only 17 per cent. of employers have completed an equal pay audit, and the number of employers conducting audits has increased by just 5 per cent. since 2005. Perhaps something about the very small number of those exposing the information is the reason for the slow-down.

John Penrose: I might have misunderstood what the hon. Lady was saying, but I was talking about the gender pay gap, not gender pay audits. The gap is, obviously, the thing that we are all trying to close; audits are one method by which people might try to close it. The number of people doing gender pay audits might have gone up or down in the past couple of years, but the important thing is whether the gap has continued to decrease. Based on ONS figures, the decrease has been relatively steady since 1978 or so. There was an initial dip and then a surge back upwards in the first couple of years, since when it has been, if not quite a straight line, as close to a straight line as statistics will come.
I do not want to overplay things. There is clearly more to do. There is an injustice, and I hope and expect that Members from all parties are determined to deal with it and close the gap, but it is none the less worth while to put some boundaries and numbers on the size of the problem that remains to be dealt with, because it is important. During this mornings sitting, we discussed proportionality and whether the measures proposed in clause 73 on gender pay audits are a proportional way of achieving the benefit that we all want. It is therefore important for us to quantify the size of the prize at which we are all aiming.
We alluded this morning to considering the different causes of the gender pay gap, but I wanted to give more detail and colour to the underlying reasons for the pay gap in this country, because it is clearly important to understand the enemy in order to conquer it. The Equal Opportunities Commission published Modelling gender pay gaps in 2004, and its findings were that a number of different factors underpin the pay gap. The document says:
Gender differences in lifetime working patterns account for 36% of the pay gap.
If the gap is currently 13 per cent., 36 per cent. of that is accounted for by gender differences in lifetime working patterns, which the EOC goes on to explain means that, on average, women work for fewer years than men in full-time employment and have more interruptions to employment for child care and other family care. That is understandable and perfectly reasonable, and provided that such decisions are taken on the basis of free will and individual choice, it is a facet of modern life. However, if some of those decisions are taken under societal pressures or because of an absence of adequate child care, for example, there may be some unfair systemic disadvantage for women. That is something that any Government of any stripe, I hope, would want to address.
It is interesting to note in passing that the kinds of thing that any Government would want to do to address such unfairness would revolve not necessarily around discrimination law but around social policy dealing with disadvantage. For example, the Government might try to ensure that more affordable child care is available for working women in particular, not just at the right price, but at the right times of day or night for those in shift work and on the right days of the week so that those whose jobs require them to work at weekends are not closed out of them, and so on.

Vera Baird: This is very interesting, but I hope that the hon. Gentleman will not overlook the part-time element. All his figures so far have related only to full-time hourly rates, and even they are a bit controversial. Does not the difficulty lie in the fact that this is not really about the element of free will? When women who have stopped working to have children want to go back, the calibre of work available to them part-time is very low, as a rule. It does not spread across many areas of work, and the jobs are low-paid. Yes, it is natural for women to have children, and they may choose to do so, but the consequence ought not to be that only low-paid work is available to them. There is a job to be done through discrimination legislation in that field as well.

John Penrose: I thank the Minister for her intervention, because that brings me to some other causes of the gender pay gap. She is right that womens penetration of different parts of the employment market varies widely. For example, it is sadly true that women are under-represented in some of the more senior ranks of the private sector. The question is how we deal with that.

Emily Thornberry: The elephant in the corner of this Committee Room is that men and women have children, but it is women who take primary responsibility for those children. Because of that, it is women who take the time off and then have difficulty in getting highly paid employment thereafter. Surely the biggest step that could be taken to equalise men and womens pay is for men to start taking more responsibility for, and to take time off to have, children. Does the hon. Gentleman agree that we should be changing social policy and, possibly, legislation so that it is easier for men to take paid time off work to look after children?

John Penrose: I thank the hon. Lady for her intervention, which illustrates the point that I am trying to make. She is right to say that the syndrome that she is describing is one of the root causes of the inequality that we see. That is a question of societys attitudes, tradition and, as she rightly points out, the way in which legislation is set up and the way in which companies approach maternity and paternity leave.
The Conservative party has produced some proposals to try to reduce the mismatch between those two sets of leave. Even if the hon. Lady and I do not necessarily agree on those, it is none the less true that it would be far better to make sure that men are not just able to take a more equal share of child care, but that the system is arranged in such a way that it makes it simpler for them to do so. However, even if the Minister had a magic wand that she could wave to change that tomorrow, we would still have the issue of free will, free choice and societys attitudes. It would be wrong for all of us in this room to dictate to parents how to allocate the child care responsibilities within their family unit. None the less, it is vital that we create an environment where it is possible for the burdens and tasks to be shared more equally.

Emily Thornberry: Is it therefore the hon. Gentlemans partys policy to increase the amount of paid leave for fathers?

John Penrose: I do not think that it is. I think that there are other ways out of the particular inequality conundrum than just levelling mens paid leave.

Mark Harper: The hon. Member for Islington, South and Finsbury makes a good point. Indeed, earlier in our discussions we made that very point when we tabled a probing amendment about the maternity clauses and asked why they did not address paternity. Looking forward to this part of the debate, I made the point that, if men and women took a more even role in child care, that, in itself, would help the cause of closing the gender pay gap and giving women more opportunities.
On the specific question that the hon. Lady raises, we have published proposals to look at allowing maternity leave to be equally shared between either parent so that we encourage both fathers and mothers to share child care more equitably, without increasing the overall burden on businesses.

John Penrose: I thank my hon. Friend for filling in the policy details since he is our Front-Bench spokesman on the issue. I hope that that has clarified an alternative way of dealing with the real problem that the hon. Lady describes.

Emily Thornberry: Is the issue pay? Is it Conservative party policy to pay men to look after children and to increase that allowance? That is my point.

John Penrose: I am happy to inform the hon. Lady that that is not the Conservative partys point of view at the moment, but we will continue to roll out policies between now and the general election, whenever it is called.

Vera Baird: The hon. Gentleman can see the problem, can he not? If there is unequal pay, and I accept that there is, it will not be the higher paid person who takes time off for child careunless we pay them to do so.

John Penrose: The point that I am driving at is that we are all trying to attain some equality between the sexes. None of us has the answer to perfect equality, and there is a balance to be struck, particularly at a time of national recession when jobs are hard to come by, between equality and trying to ensure that we do not increase the total burden on employers.
Yes, it is an important matter and it needs to be pushed forward. My party has come up with some proposals, but I hope that the hon. Member for Islington, South and Finsbury will agree that she is supporting the original matter to which I alluded, which is that many causes of the gender pay gap are outside the question of discrimination by employers. Her example is a good one. The solutions are to do with flexible working and the balance between maternity and paternity leave rather than discrimination law.

Sandra Osborne: Does the hon. Gentleman not understand? It is gratifying to hear a Conservative MP talking almost like a feminist. We all appreciate that discrimination is rooted in the structure of society and its various cultural, social, political and economic aspects. Some of us have been fighting and campaigning against it for years and have tried to seek improvements. Does he not understand that it is the same old same old? Frankly, pigs will fly before we hear of any positive action from his party on how the overall problem should be solved. We want the solution to equal pay now, not in another 30 years time.

John Penrose: I was about to thank the hon. Lady for calling me a feminist. I would have been delighted to be described as such, but she rather spoiled it by having a go at the rest of my partys policies. I thank her for the first part of her intervention, but not the second.
Is it not clear that the causes of the gender pay gap are far more complex and nuanced than we shall be able to explore this afternoon? This morning, we alluded briefly to the third tranche of the gender pay gap, mentioned in the study by the EOC, which is the famous 38 per cent.the other factors associated with being female. In other words, 38 per cent. of 13 per cent. of the gap is associated with other factors. That includes direct discrimination, differences in labour market motivation and the preferences of women compared to those of men. As the Minister said this morning, some of that will be attributable to indirect discrimination or systematic disadvantage.
It is worth pausing to consider systematic disadvantage. It can hide a huge variety of things. It can hide differences in education and it can hide differences in child care, something that has already been mentioned. It can hide differences in language and it can hide differences in aspirations and expectations. All the reasons why women are not able to be as successful in business as men are subtle, slippery and hard to change, but they are all real.

Lynne Featherstone: I am interested in the hon. Gentlemans argument. Undoubtedly a great number of factors play a part, but why should that prevent the hon. Gentleman from wanting to address the factor that is discrimination?

John Penrose: The hon. Lady leads me nicely to my next point. This morning, the Minister said that we do not know what proportion of the gender pay gap is due to direct or indirect discrimination. We all have our suspicions, but we know that it is less than 38 per cent. of the 13 per cent., as the 38 per cent. includes direct and indirect discrimination plus the other factors that I have described. It must therefore be a sub-set of that 38 per cent. In other words, at the absolute most, it cannot be any more than about 6 per cent. or 7 per cent. Conceivably, it could be only 2 per cent. or 3 per cent. That would place a significant set of parameters around the size of the problem to be addressed as a result of the gender pay audits.
To come to the hon. Ladys specific point, it is important that we acknowledge that gender pay audits might have a place. As we discussed this morning, my own party agrees on that point. Ours would be a narrower application than hers or the Ministers. None the less we agree that they might have a place, in some cases. We are arguing for a narrower application because the size of the prize is much smaller than anyone has had a chance to illustrate in our conversations thus far. Even if the size of the prize is only 3 to 6 per cent., however, it could still be tremendously worth while.

John Mason: I appreciate the hon. Gentlemans point. However, much of the Budget is also fixed annually, and only a small part of it can be changed. Presumably, he agrees that it is still worth while putting forward a Budget. By his logic, however, if only a small percentage is affected, we should not do anything.

John Penrose: Again, the hon. Gentleman leads me on nicely to my next point. Even if the size of the prize is only 3 to 6 per cent., it might still be worth while. I think that we all agree that the injustice of the gender pay gap needs fixing. The question is not, therefore, whether it is worth doing, but how we do it, how much it will cost and whether other parts of the gender pay gap can be addressed faster and for less cost. Should we be focusing our fire on that area first, or more strongly? Should we do that as well as other things or instead of other things?
It might very well be that we can get rid of half of the remaining gender pay gap by making other changes, such as better child care, which we have discussed already. We could fix half of the gender pay gap quickly by doing those sorts of things, rather than by banging on about this particular problem, which might still take many years to fix. That is my answer to the hon. Gentleman: it might still be worth while, but we must compare it with what else could be done and assess the costs and burdens being imposed in order to achieve this relatively small, but none the less potentially valuable attack on injustice.
That brings me to the Governments figures in the impact assessment, which attempt to put a size on the financial burden of achieving this relatively small but potentially important reduction in the gender pay gap. We discussed that point briefly this morning, but I want to spend a bit more time on it now. For the purposes of this conversation, I shall ignore the Governments figures on getting to grips with the legislation, which come under a different part of the impact assessment, because those costs will apply to a much wider range of clauses.
I shall focus on the one-off and annually recurring implementation costs, which the Government have calculated. They caused meand others, I suspectgreat concern. Just how widely did the Government check and consult on those figures before they were published? I ask because a number of business groups have told us that they were assured just one week before the Bill was published that clause 73 would not appear in the Bill at all. They said that they had been assured, informally, that gender pay audits were not part of the draft Billbut one week later, up they popped.

Vera Baird: This is not a gender pay audit. Does the hon. Gentleman not know the difference between a gender pay audit and transparency? There are no gender pay audits in the Bill. I challenge him to find one.

John Penrose: Annexe M of the impact assessment is entitled Gender pay gap reporting in the private sector. I apologise if I have been using the wrong technical term, but I think that what I was driving at was very clear. My concern is this: by definition, these companies are large, are at the top end of our economys employers and have more than 250 employees. However, the one-off implementation cost for one of those large organisations to come up with a satisfactory report on the gender pay gap is assessed at £92.24 per organisation. After thatmagicallythe cost per company each year is assessed at £15.38. If that was true, it would go a long way towards dissolving and salving my partys concerns about the clause, but I am afraid that it really does not pass the sniff test.
We are gravely concerned that the figures are not worth the paper they are written on, so may I ask the Minister, please, to give us substantially more detail on how they have been calculated? From what I can see, the Government have assumed that it takes one middle manager in the human resources department a total of half a day to get everything done to prepare for reporting on gender pay gaps in that organisation for ever. After that, it takes the same middle manager 30 minutes a year to deal with the report.
In such a large company there will be different divisions, legacy software systems and data that are not held in the right way. The Government have made a series of optimal assumptions about the way in which companies hold their data that, frankly, are not believable. Their assumptions are not just a bit unbelievable. I do not think that these numbers are wrong by a factor of two, 10 or 100; I suspect that they are wrong by a factor of between 100 and 1,000they are badly off beam. It is impossible to envisage such a large, and therefore complicated, company needing half a days work of a middle manager in the HR department, with absolutely no input from anyone in the IT department. Apparently, such input will not be required at all, and the middle managers work will not be checked by anyone, even though it will subsequently be crawled over by auditors, trade unionists and lawyers for the very purpose to which the Minister has alluded: to check whether the company can be sued or taken to court.
It is inconceivable that the work will not be done with great care and that it will not require a great deal of IT input for at least a large proportion of the companies required to fulfil it. It is also inconceivable that when the work has been done, it will not be checked by everyone right up to, and probably including, the entire board of directors, given the severity of the issue that we are talking about. Therefore, the costs are liable to be massivelynot just a bit, but massivelylarger than the Governments estimates, and that is the concern. If the costs were genuinely so low, it would be easier for everyone to say, This is a relatively cost-free, straightforward thing that we shall all get on and do. However, given that the size of the opportunity that we are aiming at is much smaller than we have ever had a chance to discuss until just now, and given that I fear the costs are much larger than those illustrated in the impact statement, I am afraid that the calculations start to come out the wrong way round, and that is the reason why Great Britain plc is so concerned.
Our new clause is designed to illustrate a point. It takes existing clause 73 and applies it not as a gender pay reporting mechanism, but as a disability pay reporting mechanism. If this is such an important issueaccording to the Government, it clearly is, and we agreeand if the Governments proposal is the right way to deal with it, why are we doing it only for gender pay reporting? Why are we not doing it for many other strands, such as disability, which is the one that we picked because it is a good example?

Mark Harper: My hon. Friend might be interested to knowI am sure the Minister will be, especially as the issue is relevant to the public sectorthat every single Government Department pays its disabled employees less on average than its non-disabled employees. In a number of them, that pay gap is significantly higher than the gender pay gap. The Home Office, which is the worst offender, pays disabled employees on average a third less than non-disabled employees. I am sure that that is not a comparison of people doing like-for-like jobs and that it has to do with the level of the organisation that people have reached. However, it touches on exactly the same issue, and the problem is bigger than the gender pay gap in some Government organisations.

John Penrose: I thank my hon. Friend for his helpful intervention. It precisely illustrates the point. If clause 73 is the answer to pay gaps, why is it the answer to only the gender pay gap?

Vera Baird: May I ask the hon. Gentleman a different question? If he is going to vote against the clause, why is he now trying to attach disability to something he is going to oppose?

John Penrose: Because we are trying to probe the Governments reasons for doing this only for the gender pay gap. We think that there is an inconsistency in their logic. If the clause is, as the Government claim, the answer to the problem, why should it be applied only to gender pay reporting and not other inequities? Alternatively, if the clause is not the answer, we will be happy to vote it down, because other things should be done first. That explains why we have tabled the new clause, although we are also slightly bound by the selection of the Chair. It is important that we explore the matter. Why, under the Governments proposals, will the measure apply only to gender pay reporting, and not to other strands of discriminationdisability was the one that we happened to choose to illustrate our point?

Lynne Featherstone: It is nice to see you in the Chair again, Lady Winterton.
From listening to the hon. Member for Weston-super-Mare, it seems that he wishes to minimise the seriousness of the discrimination that women experience, either because of their choice of jobs, or because of their absence from the workplace due to having babies. I will certainly look at the figures he puts forward, but given my impression from the evidence session, I think that he has reduced the number as far as possible. The 13 per cent. figure that he quoted, I understand, was basically a 17 per cent. pay differential in full-time work. We are starting from a different basis and we might not agree on figures.

John Penrose: I take the hon. Ladys point about having to be very careful with figures that we cite. Mine came from the ONS, as I thought that I should base my position on an official set of numbers. If she has a figure that she feels is better, I ask her to let me know.

Lynne Featherstone: I thank the hon. Gentleman for that intervention. I have figures supplied by all the normal organisations. My anxiety is not truly with the gender pay information clause per se, but the timing of its introduction through regulation. I feelI believe that there are Labour Members who feel this toothat women have waited a very long time. Organisations have been able to reduce the pay gap voluntarily for some time, although the statistics that I read from the EHRC on the number of employers that voluntarily complete equal pay audits make it clear that the rate of progress is pretty slow. I am not convinced that another four years of volunteering, even with the work that the Minister says will go on regarding metrics, will produce the step change that women need and deserveand they deserve it now.
I was quite shocked by the CBIs presentation at the evidence session because, like Conservative Members, it was pushing the idea that there is very little discriminationI am still not convinced by thator rather that that is not the reason for the pay gap.

John Penrose: This is an important nuance, but it is only a nuance. It is not a question of trying to minimise the level of discrimination. The point that I was trying to make was that no one, including the Minister, according to what she said this morning, knows precisely how much of the gender pay gap is due to discrimination. We can put boundaries on it, but we do not know within those boundaries how much is due to discrimination. I am sure that if she feels that my calculations of the boundaries are wrong, she will present alternative figures. None the less, it is important to know what we know. Without coming over all Donald Rumsfeld, it is important to understand what the known knowns and the known unknowns are.

Lynne Featherstone: Of course there are other factors, but I was merely saying that I felt that minimisation was going on.
The factors are being addressed. The Government have made tremendous strides on child care, and initiatives such as Sure Start have changed lives and made significant inroads into the problems. All the things that might discriminate or do discriminate against women give them less choice and less money than their male equivalents. That issue needs to be addressed and, to some extent, it is being addressed. The significant problem that remains is hidden within business in this country. The whole point of gender pay information is to create transparency and remove the problem from its hiding place so that we can all see what is happening.
Let us say that the CBI was right about this work. I will listen intently to the argument about the cost to business, but I doubt that it would be anything like as much as the hon. Gentleman says. However, let us see what is happening. We have recently, in the case of our own expenses, seen that transparency has been the only thing that can shake the establishment and change what was being hidden underneath. Transparency is the answer when it comes to providing the step change that we want on discrimination in respect of womens pay.

Mark Harper: One thing that the hon. Lady is missing is the information that one would need to produce. That is one reason why the Minister, rightly, has got the EHRC to carry out this discussion. Part of the process is straightforward, such as publishing a list of what people are paid. The difficulty comes when considering the content of jobs, comparable jobs and comparable pay. In a large organisation, if a bunch of people are doing job A and another bunch are doing job B, and they are the same, that is fine. However, if there is a multiplicity of jobs, it will mean considering the content of jobs, the skills required for them and what people are paid, and then making comparisons to determine whether that makes sense. That will not be straightforward. The CBI, the unions and the EHRC are trying to work out whether there is a way of producing that information in a simple form, but I suspect that it is not straightforward.

Lynne Featherstone: That is clearly one issue that we have to grapple with, because we are talking in advance of people coming out with the information or the metrics, around which there might be a coalition of the willing to agree the way forward. As the hon. Gentleman will know from this mornings sitting, I am in favour of somewhat more rigorous and formalised pay audits, which would not go around metrics, but would involve, as he described, full disclosure of pay, levels of pay, values of pay and packages relating to pay. As I said, the only way to make the step change that women want for equalitywithout having to wait another 39 years, as we have waited since the Equal Pay Actis to make these things compulsory. I am not convinced by the voluntary way forward.

John Mason: Does the hon. Lady agree that we are getting rather a lot of red herrings from the Conservatives? Companies produce masses of informationprobably too muchin their accounts. For example, they produce a list of pay for the top directors within bands. That information is also open to debate and discussion as to whether one company is paying its directors too much compared with another. That is not a reason for not producing the information. The first priority should be to make the information available, which may then lead to other questions that the Conservatives can worry about in due course.

Lynne Featherstone: I thank the hon. Gentleman for that helpful intervention; he is entirely right. The hon. Member for Weston-super-Mare was talking about an inordinate expense, and the point needs to be developed further. I do not accept what he said, but, were he to be right about the cost, no one would take such action voluntarily. [Interruption.] From a sedentary position, he indicates with an arm gesture that the idea is to get everyone off the hook.

John Penrose: Actually, my arm gesture was supposed to indicate that the hon. Lady is right that if the costs are as high as I fear they are, no oneincluding her, I hopewould want to take such action.

Lynne Featherstone: I do not accept the figures; I am waiting for the Minister to come back on them. From my experience in business, what we are discussing is not rocket scienceparticularly for big companies that have the wherewithal and the IT systems to produce such information. Little companies mostly know their pay levels. There are some issues about correctly valuing work, so we will have to disagreepretty profoundly, actually.
Issues around discrimination are hidden in the system. The CBI has a point that often women and men are in different types of job and womens work is paid less, even if it should be of equal value. In the evidence sessions, the Fawcett Society gave the example of paying people who pack meat in a factory differently from forklift drivers. Even though the skills and experience needed for those two jobs are comparable, because one job has been female dominated it tends to be a lot lower paid than the one that has been male dominatedthat is partly a link to the previous discussion. Those employers are breaking the law and not necessarily realising it. That is why we have to require them to address the issue. If that information was published, it could be seen, realised and addressed, and the issue could be dealt with. There are some bad employers who get away with underpaying women and therefore resist transparency. Then there are those who discriminate without knowing it because they do not even realise that they are underpaying or undervaluing the work of women.
On the issue of transparency and the CBIs assertion that many of their companies voluntarily publish gender pay information, we feel that the good guys will always publish such information. However, we are dealing not just with the good guys, and we have to go after those companies who use the fact that no one can see what they are doing to pay women less, either in particular or systemically.
I will be brief because we have already covered which factor is the largest and what the Fawcett Society said about the pay gap. However, a huge penalty attaches to part-time working, to motherhood, to discontinuous labour market records and to care and responsibility, the vast majority of which accrue to women. Organisations that are good at addressing pay, and that are open and above board and will publish such information, tend also to be those companies that have good policies and good practice and that deal with and get the benefits of diversity by promoting equality for women. Liberal Democrat Members feel that the introduction of mandatory pay audits would have a beneficial effect on companies.

Vera Baird: The hon. Lady has mentioned that a number of companies already disclose such information. According to the Tory version, however, they must be completely mad, because disclosure is so expensive that it would be silly to do it.

Lynne Featherstone: Conservative Members are coming from a particular place in this discussion. Those companies that already have pay audit systems seem to do everything betterthey seem to have women in much higher grades, better policies for pregnancy and maternity, part-time and flexible working and so on. Liberal Democrat Members think that mandatory pay audits would have greatly beneficial effectsimmediately and compulsorilymaking a real difference to women. However, we understand the Governments position and what they are trying to do. We do not agree with their position, but we will not oppose it.
Transparency, ultimately, is the key. That is why pay audits are necessary and must be mandatory. We cannot wait another four years. We did not introduce them in the times of plenty, or when the sun was shining, as Conservative Members like to put it. We do not want to see the proposals kicked into the long grass, particularly with the uncertainty about who will be the next Government. It is clear that we must take action now, and that voluntary pay audits are like waiting for Godot. If the Government fail to take such singular action in the Bill to change womens lives for good, ironicallyfor they have an honourable record on equalitythey will decree that women will remain second-class citizens, possibly in perpetuity if there is a change of Government.
A Labour Government could and should, if only for legacy, right the historic wrong and change the future of women. Unequal pay has meant women suffering in so many ways. Women have so many caring duties and come off so badly in terms of separation, divorce, child rearing and so on that, at the very least, we should ensure that they receive equal pay for equal work. If we do not do so now, then when, because 2013 will be too late?

Vera Baird: Interestingly, the Conservative Opposition seek simultaneously to vote down a clause that they intend to add toI am sure that there is a line of rationality somewhere and that I am failing to find it.
New clause 9 would enable the Government to require private sector employers with at least 250 employees to report on their disability pay gap as well as their gender pay gap under clause 73. The hon. Member for Weston-super-Mare has spent a considerable amount of time, not just today but on many occasions, seeking to minimise the issue of pay discrimination against women in business. He does not tell a convincing story, and I shall come to that when I have dealt with the disability point.
The hon. Gentleman tries to pinpoint the problem, which he thinks is not the pay gap. He thinks the problem is elsewhere, including in poverty of aspiration among womena deplorable assertion that is not too far from blaming the poor for being poor, as the Tories have habitually done. When he starts talking about one of the reasons being that women do not have expectations or aspirations

Mark Harper: Will the Minister give way?

Vera Baird: No. What I shall do is point out that there is a better understanding of where the disability pay gap comes from. The hon. Gentleman has had plenty of time to make his position clear. He made it all too clear for people watchingI see nods from all quarters. The hon. Member for Weston-super-Mare has, frankly, not a clue about the cause of the gender pay gap, but he argues a particular point to try to counter the need for a long-overdue toughening up of provision.
What is clearer is the cause of the disability pay gap. Let me deal with it numerically first. The disability pay gap is 6.4 per cent., compared with the figures that the hon. Gentleman quoted for the gender pay gap, which is much bigger. He of course excluded entirely from consideration the sharp end of the gender pay gap, which shows that the difference in the average hourly rate paid to a woman working part-time and a man working full-time is about 30 per cent. The lesser pay gap in relation to disability is none the less important. The hon. Gentleman made the point that we need to get more disabled people into work and to get them further up the ladder once they are in. That is where the deficit currently is in relation to disability. There is a clearer understanding of the causes and a readier recipe.
In any event, we already require private sector companies with more than 250 employees to include a statement in their directors reports on how they go about recruiting disabled people, retaining people when they become disabled during employment, training disabled employees and ensuring that they progress. That is the focus. We should continue to get more disabled people into work and ensure that they are represented at all levels of the workplace. That, rather than the new clause, is the route to reducing the disability pay gap and, more widely, to engendering better participation and fuller lives for disabled people because they get into better-quality jobs. Disabled peoples participation has increased some 10 per cent. since 1998. Some Government initiatives have helped, but we need to get people further in work as well as getting them into work. The positive action provisions in the Bill will help with that.
We already have a specialist disability employment programme that works with thousands of disabled people every year. In last years Green Paper, the Department for Work and Pensions said that we would press ahead with an enhanced specialist disability employment programme: work preparation, Workstep and the job introduction scheme. From 2010, that will provide a more flexible and personalised service to those disabled people with the highest support needs.
Last year, we doubled the access to work budget, which helps disabled people move into work and to stay in work. It provides funding to remove practical barriers when it is unreasonable to expect an employer to fund the entirety of such costs. We also think it important as far as possible to ensure that our approaches to the public and private sectors are consistent. There are no plans at present to require the public sector, through a specific duty, to report on its disability pay gap.
The public sector equality duty will build on the existing disability equality duty with a new specific one, underpinned by greater use of evidence and more consultation, and the involvement of those who will benefit from such a specific duty. There will be transparency and strong leadership from the public bodies to which we have given the task. Progress in securing improved outcomes for disabled people in the labour market is being made through the Bill, and it will be further enhanced across the private and public sectors. We are satisfied that that is where our focus should be, and I therefore invite the hon. Gentleman not to press the new clause to a Division.
We had quite a bit of the stand part debate this morning, so I shall just add some specifics and make some general remarks about the ludicrous assertions on how much it is likely to cost to present data that are already available in businesses. Various references have been made to the burdens on businessTories talk about those all the timeand the extra pressure of the recession. I want to make it clear that for this Government, equalities are not just for the good times; they are for the bad times too. As it happens, 2013 is some time away, and we hope to be well through the recession before any such measure is compulsory.
We acknowledge that some employers who are only just above the threshold of 250 employees might need to make adjustments, but the EHRC exists specifically to provide support in exactly such cases. We think that employers will meet their reporting obligations in the event that the power needs to be used in 2013, and there will be sanctions to follow if they do not. It is a long distance away, but it is none the less necessary to mention that there will be civil and possibly criminal sanctions for breach in due course if we cannot make voluntary arrangements. However, no criminal sanction is expected to entail a fine of more than £5,000. Contrary to what the Tories are suggesting in seeing obstacles all over the place, we hope that business understands better than it does that equality and business progress go together.
The hon. Member for Weston-super-Mare talked about equal pay being a good news story, but if we continue to progress in eroding inequality at our current rateto use a calculation that I made for a different debate not very long agoit will not be my daughter, my granddaughter or my great-granddaughter but my great-great-granddaughter who has a hope of equal pay with men. That simply will not do. He is pleased to say that on one measure, under-33s receive equal pay, but he must look at the real position. For a short period, single young women and single young men might have equal pay, although there is a good deal of evidence that within 12 months of graduation, women earn less than men, even in the same fields.
The position is not as clear as the hon. Gentleman suggests, but all manner of things have an impact, notably the ghettoisation of womens work into caring, cashiering, catering, cleaning and clericalthe well-known five Cswhich are dominated by women, dominate the available employment for women and are low-status and low-paid. The availability of good-quality part-time work is limited, and it is unfortunate that the hon. Gentleman chose to leave out the part-time figure from all that he quoted about the progress that we have made, because it is a major factor.
It is not a surprise to the world that women have children, stop working to look after them and then want to come back part-time, so why is it acceptable for part-time work to be low paid? It is not, which is why we will create transparency, find out where that low pay is and get rid of it so that women are not penalised. Many of those women, of course, are single parents, as 90 per cent. of single parents are women. They will not be penalised. We will bring the matter out.
The hon. Gentlemans proportionality argument does not work. We are not talking about a small, defined amount of discrimination. We simply do not know what the discrimination element is, but it is considerably bigger than the figures that he quoted, as I know from my 30 years experience in the field and from the Fawcett Society and all the other contributors, who are not happy with the attempt to minimise its role. If a single parent suffers only £1 less pay per hour than a man, she is suffering grievous inequality, which is likely to have a knock-on effect on her lifestyle and those of her children. That is not something that lends itself to being assuaged gently by proposals without any teeth. It must be stopped, and it must be stopped now.
The hon. Gentleman said that we could perhaps stop half of unequal pay if we had child care. Working that out would need a complicated formula, but he just plucked the figure from thin air. The Tories have no particular policies to enhance child care. When it comes to sharing care between fathers and mothers in order, perhaps, to free more women for work, we find that the only Tory proposals are unfinanced. Consequently, it will always be the lower paid who look after the children, and there will not be the pressure that there ought to be to increase female pay. He has no answers to unequal pay, whether or not it comes from discrimination. He is opposed to trying to get rid of discriminatory equal pay. On what basis exactly? Because he says that our figures on the cost are not worth the paper they are written on. Of course, he has no figure to put in their place. He has nothing except his belief. Lots of people believe in fairies at the bottom of the garden. There is no evidence of that, but there is evidence in our impact assessment of the exact cost.

John Penrose: Will the hon. and learned Lady give way?

Vera Baird: Not right now. Many companies are already undertaking pay audits voluntarily. How does that square with the prohibitive costs agreement? If it were as dear as the hon. Gentleman says, they would be mad to do even the small publication that we require in clause 73. People do pay audits systematically throughout their businesses because, unlike the Tories, they know that paying women fairly is good for their business and helps them to attract talented women.

Mark Harper: If, as the Minister says, companies are acting in that way already and recognise that such measures are good for businessa point that we have made today and my right hon. Friend the Member for Maidenhead (Mrs. May) made on Second Readingwhy does she believe that the provision is necessary? The fact that she is making it voluntary for the first four years suggests that she thinksif not she, then other members of the Governmentthat there is a case about its burdensome and costly nature, which is why it is not being brought in immediately and she wants to leave it to see whether businesses can be persuaded to do it by the case that she is putting.

Vera Baird: First, there is a big difference between those who take such action and the rest who do not, and that requires legislation. Secondly, we are not leaving it to lie because of burdens. We are seeking a consensus so that such action will be taken voluntarily and more quickly than if we suddenly slammed gender pay audits on the whole of business. Let me make it clear: it speaks volumes when the hon. Member for Weston-super-Mare does not know the difference between a gender pay audit and the provision, and suggests that businesses thought that there would not be gender pay audits one week, while there would be the next week. That shows that the Opposition do not have a clue. They are not in this field in any way. The requirements are yet to be fixed, and they do not resemble a gender pay audit.
The only gender pay audit that has ever been proposed in this Parliament is the one that the Conservatives suggested in the Bill of Baroness Morris of Bolton, which was dissected mercilessly in the Lords and shown to be a complete farce not by a member of the Labour party, but by Lord Lester of the Liberal Democrat party. The provision does not require equal pay audits. The hon. Gentleman thought that it supported a dreadful disclosure. Unfortunately, he does not understand the difference between such provisions.
We have been clear that we expect that business willas it says it will, contrary to what the Tories are suggestingstart reporting all the more not only when the CBI helps them to do so, but when they recognise that unwittingly they pay unequal pay. As for implementation costs, businesses of 250-plus employees already collect all the information that we require. They will have the necessary IT in place; the costs will be limited to presenting the information in an accessible format and publishing it, for example, on websites. Part of the job that will be done by the teams set up under the EHRC will be to identify exactly a system that is achievable within acceptable cost parameters for business.
Should the clause stand part of the Bill, it will push forward the cause of womens equal pay immeasurably. If the Tories vote against it, that will speak volumes to the public.

John Penrose: I obviously need to say whether we will press new clause 9 to a Division. I want also to respond to one or two points made by the Solicitor-General, given that she was not taking interventionsfrom me, at least. The Minister asserted strongly that the Government know and have deeply researched the costs per company for producing the pay reportsI am calling them that to avoid upsetting her againand she has backed that up with the Governments impact assessment. It was revealing that she then said that there will be an extensive consultation with business to work out how it can be done, and what parameters can be reported and how in a low-cost way. I am not sure that she can have it both waysto have an impact assessment that is done and dusted and very solid, yet saying the Government will consult on the best way to do it and minimise the cost that way. Clearly, there is a difference. [Interruption.] If the Minister would like to make an intervention, I am happy to take it.

Vera Baird: It is a very simple point. We have a fixed point now that we think will be the cost. If we can negotiate it even lower by involving business, of course we will. Is that difficult to follow?

John Penrose: It is delightfully easy to follow. It is, however, rather hard to believe. But I understand that the Minister feels very strongly about it. It is noticeable that she is getting rather upset by the fact that I do not agree with her, but perhaps we can maintain a degree of equilibrium and accept that reasonable people can agree to disagree on the matter. Reality will prove which one of us is right in the future.
On new clause 9, I was struck by the fact that the Minister relied heavily, and fairly, I thought, on saying that a great deal of work can be done to improve the disability pay gap by reasonable adjustments and positive action. I was struck, though, that that argument does not seem to have the same degree of salience in her mind for the gender pay gap. However, given where we are, the importance of making some progress and the fact that we have thrashed the issue very seriously, I will happily not press the new clause to a Division and come back to it later.

Question put, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 13, Noes 4.

Question accordingly agreed to.

Clause 73, as amended, ordered to stand part of the Bill.

Clauses 74 and 75 ordered to stand part of the Bill.

Schedule 7 agreed to.

Clause 76

Ships and hovercraft

Question proposed, That the clause stand part of the Bill.

Sandra Osborne: I want to ask the Minister a brief question. I hope that it is on the clauseno doubt you will be quick to tell me if it is not, Lady Winterton. Albeit that I have a long coastline in my constituency, I do not know much about seafarers. As I understand it, for some time the Government have been promising to reform the seafarers exemption from the Race Relations Act 1976 and to change that outdated discriminatory legislation. However, I understand that the Bill does not contain specific proposals to reform the existing seafarers discrimination, but that enabling legislation will allow reform in secondary legislation. Clearly, the seafarers and the trade union wish the Government to commit to full and effective reform of that discrimination legislation as a matter of urgency. I hope that the Minister can respond to my points.

Vera Baird: I shall try; I can give a partial explanation and then write with the rest. My hon. Friend will have that before Report, in case she wants to seek any changes then.
Section 9 of the Race Relations Act 1976 allows for differentiations in pay on the grounds of nationality. The Bill does not retain that provision for seafarers recruited outside Great Britain and in line with global shipping practice. The details of the regulations have not yet been settled, but we anticipate that the regulations applying the employment provisions to seafarers will allow employers to continue to operate pay rates that distinguish on the grounds of nationality between seafarers recruited outside Great Britain, other than those from the European economic area and relevant associated states. If there is more to it than that, I shall write to my hon. Friend. However, it is quite clearI am afraidthat pay differentials will remain between those recruited from affluent Europe and those from other areas of world.

Question put and agreed to.

Clause 76 accordingly ordered to stand part of the Bill.

Clause 77

Offshore work

John Penrose: I beg to move amendment 240, in clause 77, page 58, line 4, leave out with or.

Ann Winterton: With this it will be convenient to discuss amendment 241, in clause 77, page 58, line 6, leave out with or.

John Penrose: I hope that the amendments are entirely technical ones. I am relying on the Ministers expert legal brain to solve the problem about which we are worried. As the notes explain, clause 77
contains a power to make an Order in Council in relation to work on board offshore installations. The power may be used to apply Part 5 (with or without modification) to those working on such installations.
The amendments would trim that power, so that it can no longer be used to apply part 5, with or without modification, but just without modification. Are the Government wedded to allowing part 5 to be applied with or without modifications? If so, will any legal limits be set to the extent of the modifications that can be proposed? I am sure that we are all happy to accept an assertion of the Ministers good character and intentions, and so forth, and no doubt she would apply the provision responsibly, but it is important to bind future Ministers and to ensure that they do not have untrammelled powers that are not subject to parliamentary scrutiny. It is an entirely technical point on which I hope that she can reassure us.

Vera Baird: I am pleased to be able to make this clear. As the hon. Gentleman said, leaving out with or would, in effect, exclude the power to make modifications to the provisions. However, the power is a limited one that allows the provisions of part 5 to be modified in their application to offshore work, but it does not allow any limitation of the substance of the protections in the Bill. How the protections apply may be modified. If we accepted the amendments, we could only use the order-making power in clause 77 to apply part 5 and the corresponding Northern Ireland legislation to offshore work without modifications.
Modifications of the law, when applied by means of secondary legislation, are not new; it is simply a prudent approach to drafting. I could give several examples. For instance, section 201 of the Employment Rights Act 1996 enables the application of that Act with or without modification. So we are not doing anything novel. It is important in a consolidation exercise to ensure that we have sufficient flexibility, especially in relation to offshore work, to adapt the legislation to the technical and practical realities of the offshore environment. We do not have any modification in mind at present, but we might at some point find it necessary to adapt the terminology in part 5 to ensure that it translates appropriately to particular circumstancesfor example, those of workers who spend part of their time on ships and part on rigs.
Such an approach will facilitate a clearer and more accurate application of the provisions of part 5 in what is characteristically a very fluid area of employment, thus enabling the modifications that might be necessary to ensure that the law works in the various situations to which it will be applied. Probably the important point is that this is about the modification of the application to offshore work, but it does not allow any limitation of the substance of the protections contained in the Bill. That is probably the point about which the hon. Gentleman sought assurance, and I am pleased to be able to give it.

John Penrose: That is an admirably clear and concise response, and I am sure that everyone accepts the need to make modifications for the particular situations on board ships or rigs. Based on the Ministers reassurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 ordered to stand part of the Bill.

Clause 78

Interpretation and exceptions

Lynne Featherstone: I beg to move amendment 243, in clause 78, page 58, line 45, at end insert
(e) unremunerated work that is comparable to employment..

A probing amendment to establish to what extent volunteers have the same protection from discrimination as employees.

Ann Winterton: With this it will be convenient to discuss new clause 19Volunteers
For the avoidance of doubt, with the exclusion of matters related to remuneration, all rights of employees under this Act are deemed to extend to persons who work as volunteers without remuneration; and all duties of employees and their employers to avoid discrimination are deemed to extend to volunteers working without remuneration..

Lynne Featherstone: The amendment is probing to establish to what extent volunteers have the same protection from discrimination as employees, and I hope that they have the same protections. Obviously, the discrimination could not be between paid and non-paid workers, but volunteers often have expenses, such as those for travel and lunch. I am sure that there should be no discrimination between someone with a disability, an ethnic minority person or a woman getting differential expenses, but I would like that matter clarified, because it is unclear to me whether volunteers will be protected from discrimination. I am not sure whether the service or the type of employment will be protected by part 3 when providing goods and services, but it is clear that those who offer their services for free should not be discriminated against, and I would be grateful if the Government clarified that.

Mark Harper: I rise to speak to amendment 243 and new clause 19, which was tabled by my hon. Friend the Member for Daventry, who, owing to his service on the Council of Europe, is unable to be in Committee today.
As the hon. Member for Hornsey and Wood Green said, the amendment probes, as does the new clause, the extent to which volunteers will be covered. If organisations rely heavily on volunteers and if all the rules in the work section apply to volunteers, we want to ensure that, given the nature of volunteeringthe length of the relationship and what is invested in itwe do not make organisations less likely to want to use volunteers. In particular, as we discussed in the previous debate, the route back to work for some disabled people will involve going straight from benefits to working in a full-time job, but the route for others will perhaps involve taking up a volunteering opportunity, then a part-time opportunity and then full-time work. For many people, that is a successful route back into work.
The amendment and new clause test what applies to employers. Not only do we want employers not to discriminate, but we want them to use the disability provisions. We want them to be able to favour disabled people not just as employees but as volunteers, to provide opportunities that will help not just the disabled people but our overall goal of getting more of them back into work.
The amendment and new clause are designed to check the extent to which this part of the Bill applies to those who are volunteering their services to organisations. Will it apply to volunteering in general, or will it capture other types of volunteering, such as volunteering that is akin to working, albeit without pay?

Vera Baird: The amendment and the new clause are about whether we extend the protection from discrimination, victimisation and harassment to volunteers. We recognise the contribution of volunteering and believe that volunteers should be treated with respect and care, but we do not legislate for volunteers in exactly the same way as employees in the Bill.
First, there is no clear evidence of systematic discrimination. The majority of volunteers appear to be well managed. We have looked at the legal rights of volunteers on a number of occasionsmost recently exploring them in 2004, when a private Members Bill was promoted by the hon. Member for Canterbury (Mr. Brazier). Research from 2007 shows no suggestion of such discrimination, although there may be some dissatisfaction in how voluntary placements are organised.
Secondly, there is some protection. Volunteers are currently protected from discrimination, victimisation and harassment in respect of the provision of goods, facilities and services to the public. As recipients of servicesfor instance, from an agency that arranges placementsthere would be protection, which has been extended to cover age. Such discrimination might be highly relevant. Changing the laws proposed would provide a remedy in an employment tribunal instead of a county court, but there is a remedy already. Where the relationship between a charity or organisation and an individual amounts to employment, there is protection under the employment provisions.
A practical difficulty in extending discrimination legislation across the board is that volunteering can vary from regular daily routines in the shop to driving someone to hospital from time to time. There is a wide range of volunteering. In some cases, the organisation for which the volunteer works may do little more than put a volunteer in touch with someone who they may be able to help and then simply check up to see that all is going well. There would be difficulties in drawing the line, and there could be a chilling effect on the number of volunteers if legislative burdens were imposed on such a diverse sector. However, no one would wish that volunteers, who offer their time for free, should be treated unfairly, and the Government are committed to ensuring that that does not happen by continuing to monitor the situation and to provide support and guidance.

Lynne Featherstone: I thank the Minister for her explanation, which lays out the parameters exactly. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78 ordered to stand part of the Bill.

Schedule 8 agreed to.

Schedule 9

Work: exceptions

John Mason: I beg to move amendment 44, in schedule 9, page 181, line 33, leave out proportionate.

The addition of a new proportionality test narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the amendment to leave out sub-paragraph (8), retains the status quo.

Ann Winterton: With this it will be convenient to discuss the following: amendment 45, in schedule 9, page 181, line 37, leave out proportionate.

The addition of a new proportionality test narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the Amendment to leave out sub-paragraph (8), retains the status quo.
Amendment 42, in schedule 9, page 181, line 41, leave out sub-paragraph (8) and insert
(8) Employment is for the purposes of an organised religion if
(a) A has an ethos based on religion or belief, or
(b) the employment wholly or mainly involves
(i) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or
(ii) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)..

Sub-paragraph (8) narrows the scope of existing exceptions for religious employment. This amendment would instead broaden the scope of the exceptions to benefit all religious organisations.
Amendment 43, in schedule 9, page 181, line 41, leave out sub-paragraph (8).

Sub-paragraph (8) narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the amendments to lines 33 and 37, retains the status quo.
Amendment 189, in schedule 9, page 181, line 42, leave out wholly or.
Amendment 46, in schedule 9, page 182, line 6, leave out from requirement to if and insert to which sub-paragraph (2) applies.

Place the exceptions from paragraph 2 of Schedule 9 into paragraph 3, which has a broader framework. This would provide wider protection for the freedom of association of religious bodies.
Amendment 47, in schedule 9, page 182, line 13, at end insert
(2) This paragraph applies to
(a) a requirement to be of a particular religion or belief;
(b) a requirement to be of a particular sex;
(c) a requirement not to be a transsexual person;
(d) a requirement not be married or a civil partner;
(e) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
(f) a requirement relating to circumstances in which a marriage or civil partnership came to an end;
(g) a requirement related to sexual orientation..

Place the exceptions from paragraph 2 of Schedule 9 into paragraph 3, which has a broader framework. This would provide wider protection for the freedom of association of religious bodies.
Amendment 250, in schedule 9, page 182, line 14, at end insert
4 Paragraph 3 does not apply when A is operating
(a) on behalf of a public authority, and
(b) under the terms of contract between the organisation and the public authority..

An amendment to ensure that users of public service provided by an organisation with a religious ethos are not subject to conditions or requirements of that ethos.
It might be helpful to the Committee at the outset to indicate that many of the issues have been discussed already and that discussions will continue on the other groups of amendments. Therefore, hon. Members could perhaps use some discretion, and we might not have a debate on schedule 9 at the end if everyone is content.

John Mason: I take it that that was an indication that we should not spend too long on the schedule and that I might not have as many interventions as I was anticipating.
Amendments 44 and 45 would take out the new test of proportionality that has been added to the sexual conduct exceptions for religious bodies. The test does not appear in paragraph 7(3) of the Employment Equality (Religion or Belief) Regulations 2003, which contains the previous incarnation of the exception. I might as well just throw in at this point that I do not speak on behalf of my party on this issue.
There is no reason for the Government to depart from the wording that was agreed with religious groups in 2003, which has been on the statute book for six years. Has there been a single employment tribunal case in which a Church has successfully relied on the exemptions given in 2003? Did any such cases involve discrimination that the Government believe to be disproportionate and worthy of being outlawed? I would be grateful if the Minister could answer those questions.
I have some notes from the Church of England, which gave evidence to us. It is probably not the most radical of the religious groups that we meet day to day. One paragraph of its notes states:
It seems to us that this risks involving the courts and tribunals in having to address questions as to the precise nature and extent of particular religious doctrines, or as to precisely how strongly particular religious convictions were held. It would also mean that having done that, the courts would have to go on to determine what the effect of those doctrines or strongly held beliefs was in terms of the details of the requirements that needed to be applied in order to comply with them. This is exactly the territory into which the courts are both reluctant and ill-equipped to venture.
Amendment 43 would remove the new definition of organised religion in paragraph 2(8) of schedule 9. The new definition, which, again, was not present in the wording agreed with the Churches in 2003, states:
Employment is for the purposes of an organised religion only if the employment wholly or mainly involves...(a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or...(b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).
As the Minister said last Tuesday, any lawyer knows that as soon as we list anything, we narrow it. By listing what is regarded as organised religion, the Government are narrowing the exemption.

Vera Baird: That is not what I said at all. I said that by putting a list in, we could, by implication, leave out things that people might have thought to be covered by the legislation. That is not necessarily narrowing the legislation. I hope that that is clear; if it is not, I will say it again in a different way. I made no such assertion.

John Mason: I can respond by basically agreeing with the Minister. However, the fear is that the measure leaves outwe might not want to say that this is narrowingthings that might otherwise be expected to be included. That is my point, and I think it is valid.
In Reaney v. the Diocese of Hereford, Stonewall financed a legal action by a homosexual man against the Church of England over his application to become a diocesan youth worker. The judgment seemed peculiar and fudged the issues. Mr. Reaney won on the particular facts of the case, but the employment tribunal rejected the argument that the exemption applied only to Church ministers, and ruled that Churches could also require a youth worker to adhere to their doctrines on marriage and celibacy. However, explanatory note 747 on page E182 insists that the new wording in paragraph 2 excludes youth workers. In that case, the new wording is intended to narrow the exception.
The Governmentintentionally or unintentionallyhave got religious groups very worried indeed. Both the Church of England and the Roman Catholic Church gave evidence saying that they believed that the Bill weakened protections that were designed to protect their fundamental human right to manifest their religion.
Let me make some comparisons that might help the Committee to understand better where the Churches are coming from. If a Greenpeace employee was found to be participating in the arms trade, surely he or she would be asked to leave, because anything else would deny a basic tenet of the organisation and expose it to ridicule. If the world knew that Greenpeace employed such a person, people would cease to support it. Similarly, if a political party researcher began campaigning for another party, surely that person would not keep their job. To allow someone so at odds with the party to remain in a position of influence would be a breach of the original partys freedom of association.
There is something fundamental about working for an organisation with a strong ethos. This could apply to any of the protected characteristics, whether it is age, disability, LGBT status or anything else. There is an expectation that all staff should be signed up to and enthusiastic about an organisations direction. That affects the mood when staff come to work in the morning, how they chat in the staff room and so on. I am an accountant, but I have worked for nursing homes and housing associations. One would expect everyone in a nursing home, including the accountant, to be signed up to nursing and the welfare of the residents. Similarly, in housing, one expects everyone to be signed up to quality housing and the good of the tenants. In the same way, the Churches should not have to employ people who, through their lifestyle, repudiate important beliefs that the organisation exists to promote.
Amendments 42, 46 and 47 would widen the scope of the religious exemptions. In the Reaney case that I mentioned, the Diocese of Hereford was ordered to pay £47,000 for refusing to appoint to a diocesan youth worker position a man who had only recently ended a homosexual relationship and who said that he might enter into another such relationship in future. Everyone can see the difficulty in which that places the Church. The case shows that the existing exceptions are not sufficiently robust. My amendments demonstrate different ways of wording the exemptions to provide better protection for religious freedom of association.
Amendment 42 takes the religious ethos test from paragraph 3, which is a broader exception, and places it into the definition of organised religion. A body would have to prove only that the employment was for the purposes of an organisation with a religious ethos. The test is acceptable to the Government in relation to religious discrimination, so why not in relation to other grounds? The approach would make it easier for religious bodies to prove that a particular post fell within the sexual conduct exception.
Amendments 46 and 47 take the list of activities exempted by paragraph 2 of schedule 9 and place them within the framework of paragraph 3. Again, paragraph 3 protects a broader range of posts. That is by far the neatest and most effective way of providing protection to religious bodies that want to maintain their beliefs in their employment policies. Some will say that both my approaches are too wide and would benefit organisations and jobs that they do not think should be covered, but we must be careful about telling religious organisations which posts are important to their religion and which are not. If they can pass the religious ethos test, we must leave it up to them.
I note that the Conservatives have tabled amendment 189, which would make the definition of organised religion marginally wider by tinkering with the wholly or mainly test. Their amendment highlights the arbitrary nature of the organised religion test. A youth worker who spends 49 per cent. of his time teaching doctrine is none the less not in a protected post, but if he spends 51 per cent. of his time teaching, he is, so a Church may be told by the state to employ as a teacher of their religion someone who rejects its teachings all for the sake of 2 per cent. of the workers time. The arrangement seems too arbitrary and uncertain.
There are too many hoops in the exceptions for Churches to jump through, even though they are designed to protect Churches fundamental human rights. I hope that the Government will think again about some of the issues.

Mark Harper: The hon. Gentleman lays out a good case for a number of his amendments. As he mentioned, we tabled amendment 149, which would leave out the words wholly or from the measure. We chose it predominantly as a probing amendment to enable us to have this discussion, although he has tabled more substantive amendments. We have had discussions on this topic before, as Committee members will remember, and I want to test the Minister on two issues: what the Governments intentions are, and whether the Bill implements them correctly. I then want to discuss whether the Bill deals with the issue adequately, although I shall do so only briefly because the hon. Gentleman addressed that satisfactorily.
Several hon. Members and I have held a number of discussions with some of the Church organisations and two issues have arisen. The hon. Gentleman has already alluded to the first, which is the narrowing of the definition of an organised religion under paragraph 2(8)(a) and (b). At the moment, the Governments position in the Employment Equality (Sexual Orientation) Regulations 2003 does not attempt to define it at such a level. The then Minister of State, Lord Sainsbury of Turville, said in response to the debate on the 2003 regulations in the House of Lords:
When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion.[Official Report, House of Lords, 17 June 2003; Vol. 649, c. 779.]
When we had such a discussion previously, there was no disagreement about those who are in a post of clergy where they are taking religious services. The issue was the width of the scope of paragraph 2(8)(b), which concerns
promoting or explaining the doctrine of the religion...to others.
We have had some discussion around whether it would cover those who, for example, were involved in promoting a religious organisation to the outside world and representing its case, for whom it would be significant that their public utterances about the things that were important to that religion or Church, and their behaviour, would be in line with the views of the Church. It clearly would not be convincing if they said one thing and did another.
Many Church groups think that the wording of the provision represents a narrowing that will rule out a number of the posts that are currently allowed under the 2003 regulations, which the Bill is effectively supposed to be carrying across. It would be helpful if the Minister could tell us about the translation of those regulations into the Bill, and say what was intended, so that we can see whether that has been the effect. Will she also set out what posts the Government think should be covered?
One of the things that has confused the situation is the explanatory notes, which talk specifically about a church youth worker. We have discussed whether the nature of the role of a church youth worker could be determined as
promoting or explaining the doctrine of the religion...to others
as under paragraph 2(8)(b). We have also considered whether that type of post should be included, and we will welcome the Ministers comments about that.
The second area, which the hon. Member for Glasgow, East touched on, is the proportionality test. A number of Churches and religious organisations think that that represents a further narrowing. It concerns the condition in sub-paragraphs (5) and (6) that when the compliance principle or the non-conflict principle are engaged, both must be applied only if doing so is a proportionate means of complying with the doctrine of the religion. That proportionality test is not present in the 2003 regulations. The Churches are concerned not because they want to act disproportionately, but because putting that in means that courts and tribunals will have to be involved in addressing questions about the nature and extent of particular religious doctrines and the way in which they work.
I raise that because when regulation 7(3) of the 2003 regulations was drafted, it seemed that the Governments policy was deliberately not to impose a proportionality test. In the case of R (Amicus) v.Secretary of State for Trade and Industry in 2004, the witness statement filed on behalf of the Secretary of State explained:
Regulation 7(2) simply sets out criteria of general application and leaves it to the courts and tribunals to determine in individual cases if those criteria are met. This was not done in relation to employment for purposes of an organised religion in regulation 7(3), because the Government was concerned it would lead to litigation in tribunals about the extent to which requirements dictated by doctrine or the religious convictions of followers could legitimately limit working for an organised religion, and to what extent those requirements, and by extension, the doctrine or convictions giving rise to them, could be said to be reasonable or proportionate. The Government was engaged in striking a delicate balance
the Committee acknowledges that it is a balance
between the employment rights of gay and lesbian people, and the right of religious groups to freedom of religion. The Government took the view that it is not appropriate for courts or tribunals to make such judgments, and that the balance should be identified in the Regulations themselves.
It would be helpful if the Minister commented on the judgment at that time, why the Government in effect have introduced the proportionality test and whether they recognise that it carries that riskthat it opens up to courts and tribunals the test of having to make judgments about individual religions. The hon. Member for Glasgow, East made a very good point when he said that those judgments are best left to the religions themselves, rather than being taken outside the religion and given to the industrial tribunal or the court.
Those are the two issues on which I wanted to probe the Minister and invite her to set them out clearly for the Committee, so that we can see whether the Bill does what the Governments stated intentions are.

Evan Harris: I have an amendment in this group, which I shall speak to briefly. I shall also comment briefly on the issues that have just been raised. I set out my views under an earlier clause. I thought that it was appropriate to do that because it is such a critical issue and I did not think that it was best dealt with by being hooked on to a probing amendment on wholly or mainly in the schedule. However, the hon. Member for Forest of Dean has brought the issues forward quite well.
My amendment 250 is a probing amendment to enable me to ask a specific question. Why does the Minister not consider it appropriate to provide a different test before religious organisations with a religious ethos are allowed to discriminate against their employees based on religion or belief when they are delivering a public service, compared with all other circumstances? I recognise and my party recognises that it is necessary to have the sort of exemption that we see in paragraph 3 of schedule 9 for religious organisations, but the balance is wrong when we come to the delivery of a public service, because there may be individuals delivering a public service and then the tender, the contract, for the service that they are providing is handed over to an organisation with a religious ethos. What protection do people who have never applied to work for that organisation, but find themselves taken over, as it were, by it, have against a religion test being applied to them when they are, yes, working for an organisation with a religious ethos, but doing a job that could equally well be done by a secular organisation, such as providing accommodation, care, homelessness provision or a number of other public services? They might even be doing the very important and obvious public function of arranging adoptions for children. I do not think that there can be more of a public function than that. If they were taken over, the concern would be, no matter how good they were at their job, that an occupational requirement would be made out.
I am asking whether the test needs to be higher when we are talking about public services. Otherwise, if more faith-based organisations deliver public servicesit would be discriminatory to prevent them from delivering public servicesindividuals seeking to work in that field might have a far smaller range of choices as to what jobs they can do and what employers they can work for if they are not religious or are of a minority religion or are not of the religion of the organisation delivering the public service. I hope that the Minister recognises that I accept the need for an exemption, but that there is a question in respect of the delivery of public services. I should be grateful if she would comment on that.
I turn to the issues raised by amendment 44, moved by the hon. Member for Glasgow, East. I shall leave the Minister to deal with the question of why proportionate was included. I argued previously that the directive requires tribunals and courts to have regard to proportionality when interpreting our legislation. I have said previously that the closer our legislation gets to the wording of the directive, the less room for doubt there will be.
Other than the caveat that I raised on paragraph 3, I pretty much support the wording of the schedule, which is why I did not table any significant amendments. They would have been needed if we were to have had the sort of debate that we had earlier. I hope that the Government will be robust not only on the reason for including proportionate but also on the question of why we need paragraph 2(8). As we said earlier, it exists to implement the Amicus judgment, which in turn makes it clear that our legislation is compliant with the directive. The Minister reassured me on that earlier; I hope that she will now reassure the hon. Member for Forest of Dean. Whether or not it is a narrowing of the terms of our legislation, it is not a narrowing of the law, because the law is what is allowed by the directive, as interpreted by the court case. The Amicus judgment was clear and welcome in that respect.
The hon. Member for Glasgow, East referred to the Reaney case. I ask the Minister to correct me if I am wrong, but I believe that it did not set a precedent as it was a first instance tribunal. What I say is based on what I have heard, but I believe that neither side was particularly happy with the judgment. Although the claimant won, I happen to think that it was unsatisfactory that the job described was one for which a wider exemption might have applied. Mr. Reaney won on the basis that he said that he was celibate at the time, or not practising, and that it was unfair, unreasonable and discriminatory to require him to give a commitment that would not have been asked of a heterosexual. However, I do not believe that it was a good judgment; I wish that it had been appealedand successfully sobut both sides decided to cut their losses.
The example given in the explanatory notes refers to a church youth worker. Reaney was a diocesan youth worker, but the tribunal felt that there was more of a representative role in that case. It is worth reading the Reaney judgment. Given the job description and the CV of the person concerned, it was clear that he was a good youth worker. He happened also to be a Christian, but he was a good youth worker and the appointment committee said that he was streets ahead of all the other applicantseven knowing his sexual orientation and the fact that he had had a homosexual relationship in a previous job.
For positions like that, it does not seem right that the wider exemption should apply. Youth workers working for religious organisations throughout the country should not have to quake in their shoes and worry that they are liable to be sacked if their sexual orientation comes to light should they meet someone, fall in love and want to have the same relationship with that person as heterosexuals would haveeven though they are homosexual, and even though they are doing a good job.

John Mason: The hon. Gentleman said that the youth worker happened also to be a Christian. A lot may hinge on that. For someone with a humanist or secular background, being a Christian is peripheral and only a small part of life. The problem is that for religious organisations, including churches, being a Christianor a being Muslim or a member of any other religionis absolutely central. It is not something that happens to be added on; it is central.

Evan Harris: I apologise if I said happen to be; I did not think that I had. I accept that the requirement for that post was that the person should be a Christian. Clearly, such a religious requirement would apply under paragraph (3). There is no doubt that it is an organisation with an ethos, and one could argue that it is an occupational requirement. I have no problem about that advertisement saying Christians only. I hope that I have clarified that, and I am not seeking to make the point that it was not a genuine requirement, and therefore central. I am saying that it is possible to be Christian and gay. To discriminate against someonewe have heard this beforeon the basis of their sexual orientation by saying that they are somehow outwith the doctrines of the religion and therefore fail a religious test is not satisfactory. The Minister assured me, although this gives me a chance to clarify the matter further, in answer to the point when I tabled a probing amendment, that there was some provision in the Bill that made it clearit may be that it is just obviousthat if someone was discriminated against on the grounds of their sexual orientation or a manifestation of that where it is so closely connected that it is their sexual orientation, by definition, it could not be a religious criteria; it would be sexual orientation discrimination. If she could repeat thatshe said it was something to do with schedule 23, but I cannot find itI would be grateful. That is all I am going to say about the point made by the hon. Member for Glasgow, East, because we have thrashed out that argument on a number of occasions.
The only other point to make in respect of paragraph 2(8) is what will happen to church organists. It is the save-the-organist point that I want to make. It was raised earlier by people who have an interest in it. Curiously, it looks likeas they put it, for I do not think it is curious at allyouth workers will not be caught by the exemption. I am pleased that they will not, if that is the case generally speaking, unless the advertisement is written much more clearly in terms of promoting the doctrine of the religion than most youth worker jobs are. The issue is also whether it would actually catch the organist, because their work
wholly or mainly involves
(a) leading or assisting in the observation of...ritualistic practices of the religion.
It would be unfortunate if the wording was designed to capture people where the main part of their job was to play a musical instrument well, albeit with religious music.

Mark Harper: What the hon. Gentleman is saying perhaps illustrates the point that I was trying to make. Trying to be too specific on the face of the Bill about the nature of the roles leads to such situations, where one would include the church organists, where actually, I would argue, what they do is not very important. We would then not capture someone who was involved, such as a youth worker with a significant amount of teaching. It would be better if the specific nature of the test was not there. In the definition, we would just leave organised religion in there, and it would be determined by the court or tribunal if it was an occupational requirement.

Evan Harris: I disagree with the hon. Gentleman. The more specific it is, the less doubt there is. That is why I welcome the fact that it has been made more specific. The point that I am making is that even when it has been made more specificnot necessarily more narrowin our legislation, it is not clear whether that definition captures people who I do not think ought to be caught.
I do not want the hon. Member for Forest of Dean to think for one moment that I accept that if one is teaching and is in a religious organisation, there is some sexual orientation test that is automatic. I understand that if one is proselytising, that can be a question. But promoting or explaining the doctrine is what matters, not the general teaching point of view. That implies that any role that involves young people, which automatically involves teaching, would be caught. I hope that that is not the intention of the schedule. It must not be its intention, because otherwise we would just have a no gay teachers situation, which, with the connotations, is unacceptable. I accept that the hon. Gentleman does not need to make them, but they are sometimes made in that respect. I urge all of us to be careful where we assume that teaching, rather than explaining or promoting the doctrine of a religion, is automatically caught.
There are just two other points that I would like to raise to avoid a stand part debate. That is to ask the Minister briefly why, in paragraph (1), in line 15, the language does not use the term genuine occupational requirement, but only occupational requirement. It would be sensible to use the language of the directive, because it is there.
On the same page, sub-paragraph (4), line 37, raises a couple of further issues. Why does the question of whether
A has reasonable grounds for not being satisfied that the person meets
a requirement apply only to the
requirement to be of a particular sex?
The Bill statesrightlythat there are no ifs or buts. A person cannot say, Well, he kind of looks male, so well assume that she is not female and that therefore the provision does not apply. Should that not also apply to age? A person has a specific age that should not be open to doubt.
Finally, on the same issueto a certain extentit is most unfortunate that sub-paragraph (3)(a), on page 180, in respect of a transsexual person, does not give any protection to someone with a gender recognition certificate. There is a starred but not select amendment on this matter, so the Minister might have had some notice of it. It is very worrying that a person can have a gender recognition certificate stating very clearly their new gender and still be liable to be considered a transsexual on a spectrum without the protection that I thought that the Government would seek to provide. With those caveats and questions, however, I support the Governments general approach, and I urge them to resist the lead amendment.

David Drew: I do not know whether I have said this already, but it is a delight to serve under your chairmanship, Lady Winterton. I rise with some trepidation, given the length of time that we have spent on this debate already. Let me say first, however, that given the shortage of organists in my church, I imagine that it would let anyone play its music, regardless of their religious beliefs. So if anyone would like to apply to my church, we would be only too grateful to receive them.
I want to make two quick observations. First, I do not think that exceptions make good rules here. Although I largely agree with the hon. Member for Glasgow, East, a couple of his examples demonstrate the difficulty in this area. It just so happens that one of the founding fathers of Greenpeace is now an avowed supporter of nuclear powerone Patrick Moore. That shows how peoples beliefs can change over time. When laying down general rules on organisations, therefore, we must consider that peoples views are not static. People do change their views.
I realise that we are talking principally about religion, but different examples can demonstrate the difficulties that arise over time. I shall give a personal example. A very good friend of mine was the most wonderful religious education teacher who just happened to be a long-standing agnostic. That was well known and accepted. In those daysI am going back rather a long timeRE teachers were supposed to be of the Christian faith. However, he taught it from his perspective and was able to hold his views somewhat in the background while teaching clearly and carefully what was deemed to be a very acceptable curriculum. That can be done, although it is very difficult

John Mason: I appreciate what the hon. Gentleman is saying; he is making a balanced point. However, does he agree that there is a slight difference between an RE teacher in a school, who shouldI agree with himgive a balanced view of all religions, and somebody within a Church or a religious organisation, who would be promoting the ethos of that organisation?

David Drew: I would agree. I come to my second point. I am alarmed by the intolerance. I find it difficult to understand how someone who has a fundamental disagreement with the organisation from which they are seeking employment or membership does so from a position of almost trying to be a protagonist. In this day and age, people should be much more tolerant, and they should not try to undermine basic belief structures, whether religious or otherwise. Unfortunately, people seem to want to do so.
A lot of thisit may not be under the purview of the Billgoes back to the fear, which is in some ways justified, that religious organisations with a clear view on adoption have, with the passage of time, been driven out of adoption, if not quite entirely. They have had to almost de-religionise their perspectivesorry about my terrible use of the English language. They have moved out of adoption, which is sad, because they had a role to play. They had a clear perspective on delivery, and I do not understand why they have had to move out when others have been able to remain. There should be a degree of choice. There should also be tolerance of the way in which belief-based organisations deliver in the public sphere. We should not shut out everyone with such beliefs.
I will be interested to hear what my hon. and learned Friend the Minister has to say on making the situation clearer. I hope that we can encompass all beliefs within the normal sphere of opinion rather than narrowing things to such an extent that we eliminate those who have a view that is not entirely in line with everybodys opinion, which I fear will happen. Those beliefs may still have a purpose. As a Christian, I believe that such organisations have a strong underlying ability to work well in areas such as adoption. They could also work well when it comes to employing Church workers, includingdare I saythe odd organist.

Vera Baird: I will come back to the odd organist in a minute if I may.

David Drew: If the Minister wants to volunteer, she would be very welcome.

Vera Baird: My hon. Friend would be in dire straits if I played the organ in his church.
Let me answer the three quick questions levelled at me by the hon. Member for Oxford, West and Abingdon. He asked why the word genuine is not in the measure. We had that discussion this morning: the word would not add anything and it will be a matter of fact to determine whether something is genuine.
The hon. Gentleman asked why paragraph 1(4) of schedule 9 refers to age as well as sex. Paragraph 1(1)(c) provides that the general occupation requirement exception applies either when the employee or job applicant does not meet the requirement or when the employer
has reasonable grounds for not being satisfied that
they do. Paragraph 1(4) provides that in the case of a requirement to be of a particular sex, the exception applies only when the employer or job applicant does not meet the requirement. We do not believe that it would be difficult to establish whether the employee or applicant is a man or a woman.
Incidentally, the hon. Gentleman was concerned about people who have gender recognition certificates. A transsexual person with a certificate is going to be treated, as they must be for all purposes, as being of the acquired gender. That is provided for by section 9(1) of the Gender Recognition Act 2004.
Coming back to the schedule and the question of the requirement to be of a particular age group, there might be some argument about the age of the employee or applicant. If he or she refuses to disclose his or her age, it is unlikely that the employer could prove that they do not meet the requirement, because the age would usually be in the employees exclusive knowledge. In that case, the employer may be able to show reasonable grounds for not being satisfied that the employee or applicant meets the requirement. I hope that that is good enough.
Amendments 44 and 45 would remove the express requirement for those relying on paragraph 2 of schedule 9 to show that applying a relevant occupational requirement is a proportionate way of complying with a religious doctrine or of avoiding conflict with a strongly held religious conviction. It is true that the existing exceptions do not contain an express requirement of proportionality. It is also true that the hon. Member for Oxford, West and Abingdon has put his finger on the point that courts must interpret them as though they did, because that test is put in by the relevant European directive, so we decided to spell out the requirement in paragraph 2. It is implicit anyway; we are not narrowing it. Not doing that would also put paragraph 2 out of step, because we have harmonised the wording of all other exceptions for occupational requirements.
I accept that a restriction on employment by reference to the doctrines of a religion or strongly held convictions can pursue a legitimate aim. The existing exceptions spell out the express provisos in the relevant European directives that the discriminatory requirement must meet a legitimate objective, but it must be proportionate. Proportionality is obviously fact-sensitive; it must be assessed on a case-by-case basis, which seems entirely reasonable to us.
I rather differ from the hon. Member for Oxford, West and Abingdon, and I think that I derive some support from my hon. Friend the Member for Stroud in pointing out the difficulties with being very specific and thinking that it is better for issues to be a question of fact. Would a youth worker be covered by an occupational requirement? Similarly, would an organist? It would be a question of the facts in the particular case, would it not? One can imagine that a republican organist might be able to play God Save the Queen and so not need the commitment.
In each case, it would be a question of fact. It is better not to be specific, because it is a delicate area, and it is easy to fall down on the wrong side of what most people would think reasonable. Many of the cases will be fact-sensitive. I regret slightly the intrusion of the youth worker into the explanatory notes. It is too wholesale a provision. We might consider whether it needs replacing.

Evan Harris: For what the explanatory notes are worth, I hope that the Minister keeps the youth worker in. I urge her not to remove it. She used the example of a republican playing God Save the Queen, but that would amount by analogy to a religious test. That is fineI do not think that there is a problem with requiring a church organist to be a member of the congregation and therefore of the right religionbut we are talking about sexual orientation and other protected characteristics. I therefore hope that she does not rely on her analogy as the appropriate one. There is a concern that organists and other people involved only in ritual, not promotion, might unfortunately be caught by the provisions.

Vera Baird: One would hope not. As I said, they are intended to operate on a fact-sensitive basis with the tests of proportionality and reasonableness. Is there some fear perhaps that a gay organist would not play at a marriage ceremony or something similar? I cannot imagine that they would take that view or that the Church would exclude someone who is gay from doing so on the basis that it was somehow distasteful. My view is that we are getting the balance right. The more that we discuss the issuewe have discussed it quite a bitthe more it seems better to leave each issue to be fact-sensitive and lay down the framework as we have.
The effect of amendment 42, tabled by the hon. Member for Glasgow, East, would be to allow not just organised religions such as Churches but all religious organisations, including faith schools, to rely on the exception in paragraph 2. For example, a care home run by a religious foundation would be allowed to justify refusing employment to a care assistant who was divorced because their wife had left them, or to a nurse who was a civil partner.
However, paragraph 2 and the existing exceptions that it replaces apply only to employment for the purpose of an organised religion, not a religious organisation. In the Amicus case, which has been referred to, the court accepted that employment as a teacher in a faith school, for instance, is likely to be for the purposes of a religious organisation, but it is not for the purposes of an organised religion. There is a distinction between the two. A religious organisation could be any organisation with an ethos based on religion and belief, for which there is a specific exception in paragraph 3. Employment for purposes of an organised religion clearly means a job, such as a minister, and it is that to which Lord Sainsbury of Turville was referring; he was quoted by the hon. Member for Forest of Dean.

John Mason: I think we all agree that there is a difference between a religious organisation and an organised religion, although I hope that the Solicitor-General accepts that it, too, is a complicated area. Sometimes, an organisation could represent, say, half a dozen smaller churches so, effectively, although it is not a church, it is very much a representative speaking for churches and we would expect at least the leaders of the organisation to be signed up to the beliefs of those churches.

Vera Baird: I accept that the matter is complicated. The organisation might be made up of organised religions, in which case we are in deep trouble. The hon. Gentleman has made a point. I do not doubt that it is a complex area, which is why it is better to lay down a framework and not be specific as we are invited to be from time to time by the hon. Member for Oxford, West and Abingdon and to leave distinctions to the courts.
Amendment 43 would reduce the clarity of the exception under paragraph 2 of the schedule by removing the definition under sub-paragraph (8) of employment
for the purposes of an organised religion.
The effect of amendment 189 would be to exclude from that definition those whose employment wholly as opposed to mainly involves duties between one of the definitions two limbs. The existing exceptions about employment
for the purposes of an organised religion
do not contain the definition of what that expression means. However, contrary to what has been suggested, the new definition does not narrow the scope of the existing exceptions.
There has been some confusion about what is meant by
for the purposes of an organised religion,
and we have therefore included a definition of the term to clear up misunderstandings, to save courts and tribunals having to go into areas of potential religious controversy and to reduce the risk of the exception being misused. The definition is designed to make it clear that the exception applies to a very narrow range of employment, such as ministers of religion plus a small number of posts outside the clergy, including those that exist to promote and represent religion. I have found examples of that difficult to put forward. That was again what Lord Sainsbury had in mind when he talked about the existing exemption under regulation 7(3) of the Employment Equality (Sexual Relations) Regulations 2003. What he said was entirely consistent with the Amicus case, which was that regulation 7(3) was very narrow and affords an exception only in very limited circumstances.
Amendments 46 and 47 would allow employers with an ethos based on religion or belief to discriminate in relation to work by applying the requirement not only to be of a particular religion or belief, but a requirement under paragraph 2(4) of the schedule. For example, a hospice run by a religious order would be allowed to justify refusing to employ someone of that religion who was married to a divorcee. By contrast, paragraph 3 of schedule 9 allows employers with an ethos based on religion or belief to discriminate in relation to work by applying only a requirement to be of a particular religion or belief, and then only if that is an occupational requirement. That paragraph provides an exception that organisations with a religious ethos may rely on, in addition to paragraph 1 of the schedule. That additional exception recognises that such organisations need to be able to preserve their religious ethos and that is why it covers only the protected characteristic of religion or belief. Paragraph 3 of the schedule is designed to replicate the effect of the current exception under regulation 7(3) of the 2003 regulations derived from the framework directive.
Amendment 250 would prevent organisations with a religious ethos that are working on behalf of public authorities using the exception under paragraph 3. That exception allows religious organisations to require employees to be of a particular religion if it is an occupational requirement. To put it in a nutshell, the Government do not want to interfere with the religious ethos of the organisations, even though they deliver public services. It is rather, as the hon. Member for Glasgow, East is frequently driving at in many of his amendments and new clauses, the diversity of delivery. We think that we have hit an appropriate balance.

Evan Harris: I am disappointed with that answer, because I asked the Minister what happens to people who find themselves employed by a religious organisationI use that term to capture the idea of organisations with a religious ethos. She might say that the occupational requirement is the protection, because that has to be genuine, but during her response she said that she understood that the purpose of the provision was to allow such organisations to maintain their ethos. If an organisation says, We cannot maintain our ethos unless everyone in our organisation is of this religion, it could sayI hope that she will say that they cannotthat that creates an occupational requirement. I do not accept that everyone has to believe the same thing for an organisation to have an ethos. That is not the case in schools, thank goodness, although it sometimes feels that way. Will the Minister clarify those two things: the transfer of employment and whether an occupational requirement exists by definition?

Vera Baird: It does not. As I said before, it would be a question of fact in each casewhether something that had been done by someone who was not of that faith after a takeover by some religious organisation had been transformed into a genuine occupational requirement for the purposes of that religion. That would be a question of fact. Is it not right, ideally, that it should be a question of fact?

Evan Harris: My concern remains. The Minister said that it was a question of fact whether a new employer that is a religious organisation could say that there is a new occupational requirement. However, if the job is broadly the same, is it her contention that merely changing the employer, who may feel that there is a need to preserve the ethos by ensuring that everyone is a Christian, for example, creates an occupational requirement that did not exist before? That is my concern and I was hoping for some clarification.

Vera Baird: I do not think that it is difficult. It is a question of fact. If the nature of the job has changed so that it has a religious component, perhaps there would be a genuine occupational requirement. However, if the job is the same, and the takeover did not require any adaptation to the ethos of the new owner, then there probably would not be. On such a theoretical example, it is impossible to say yes or no. I cannot see how the hon. Gentleman will be assisted by an answer. It seems pretty straightforward that the circumstances would have considered to see whether the religion tried to say that there was an occupational requirement, whether that could be genuine in the context of what had gone before, or whether it might be because something in the way that the service is delivered by that religious body requires the religious component. Therefore, as I said before, it is a question of fact.

John Mason: The idea that a religious organisation would employ only people who belonged to that religious group is not our normal experience. My experience of Catholic schools in Glasgow is that only the promoted posts would insist on being Roman Catholic. The other teachers and staff could be of any religion or none.
The point about a new employer works both ways. It has been suggested that someone goes from being in secular or humanist employment to being in religious employment. I do not know where the British Humanist Association fits in as we noticed in the evidence sessions that it counted itself as a religion when it suited it to do so. An employee could also have a problem going from an organisation with a more religious ethos to one with a humanist or secular ethos that was unsympathetic. Such situations will always be handled delicately and we need to be aware of that.

Evan Harris: That person would be protected by the employment regulations that protect people from discrimination on the basis of their religion or belief. There is no exemption sought by the secular world to specifically discriminate against religious people regulation 7(3)(a) in the old employment directives. So it is not equal in that way. It is a specific exemption to be used by religious organisations, not secular ones. I hope that the hon. Gentleman will accept that.

John Mason: My point was that there is a problem both ways. For example, there may be a problem for a nurse who had been working for a religious nursing home and was used to praying for the patients who then had to switch to a nursing home where they were not allowed to do that. Clearly, that would work the other way as well.
I agreed with some of the points made by the hon. Member for Stroud, such as tolerance, choice and including different views. That is what I am looking for in all the amendments I have tabled. I am disappointed that the Solicitor-General is not taking on more of the content of the amendments. Even though we all support proportionality, to take it out would have resulted in better law. However, I am encouraged and appreciate the wording that she used. She said that it is a delicate area and that perhaps the youth worker was not the best example. She also talked about getting the balance right and diversity of delivery, which are the kind of reassurances that I and other organisations are looking for. I thank her for that. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Vera Baird: I beg to move amendment 68, in schedule 9, page 181, line 36, leave out work and insert employment.

This amendment would ensure that paragraph 2 of Schedule 9 refers consistently to employment.

Ann Winterton: With this it will be convenient to discuss Government amendments 69 to74.

Vera Baird: These are technical amendments and minor drafting oversights.

Evan Harris: To remind myself that I wanted to raise a question on this, I tabled an amendment that I knew would not be selected. It was an amendment to the Government amendment and I wanted to give advance notice to the Minister that I wanted to query one area. Why did she choose in amendment 69the others in the group are consequential to thatto extend an exemption to cover section 52(2)(d), which talks about subjecting (d) to any other detriment. My understanding is that it is unusual to give carte blanche through an extension. For example, clause 80(2)the part of the Bill dealing with educationstates:
The responsible body of such a school must not discriminate against a pupil...
(f) by subjecting the pupil to any other detriment.
Although many of those provisions are lifted in the schools exemption in schedule 11, the specific provision that the pupil should not be subjected to any other detriment is not lifted in the religious exemption. I remember that the Government amended the Equality Act 2006 to ensure that there was not the ability to subject the pupil to any other detriment. Therefore, more explanation is needed about why the protection that would otherwise exist from section 52(2)(d) not being included in the exemption is now proposed to be included. I do not have a problem with the rest of the increased scope that the Government are proposing in their amendments.

Vera Baird: It is an amusing idea that tabling an amendment that is not selected is a form of giving notice to the Government. Paragraph 5 of schedule 9 allows an employment service provider to restrict access to the service that they provide to people with a particular protected characteristic if it is an occupational requirement for the work to which the service relates. Clause 52(1) and (2) set out how an employment service provider must not discriminate in providing services. The category of any other detriment in subsection (2)(d) is residual, sweeping up anything that does not fall within the preceding circumstances. If we accept that an exception is appropriate in principle, it should apply to all circumstances giving rise to liability.
An employment service provider should be able to align services with the lawful needs of the employer and the requirements of the jobs to which its services relate, as is currently the case. It makes no sense to pick and choose to what circumstances the exception may apply in that context. That would only encourage claimants to structure their allegations so as to bring no claim within what is intended to be a residual category to avoid applications of the exception. I hope that that is a satisfactory explanation.

Evan Harris: I am glad that the Minister had something ready to read out in relation to my point. SometimesI accept that this is not true in this caseGovernment amendments are tabled late in the day and a starred amendment is the only way to give notice that I want to raise a point on them, other than to make a telephone call to the Ministers team, which I will be happy to do in future if tabling a starred amendment offends her. I will have to read what she has said carefully, either on the record or, indeed, now, but I have no further objections to the group of amendments.

Amendment 68 agreed to.

Amendments made: 69, in schedule 9, page 182, line 26, leave out 52(1)(b) or (c) or (2)(a) or (b) and insert 52(1) or (2).

This amendment would expand the scope of the exception in paragraph 5(1) of Schedule 9 (permitting discrimination in relation to work for which having a particular protected characteristic is an occupational requirement) so that it applies to all circumstances in Clause 52(1) or (2) giving rise to liability.
Amendment 70, in schedule 9, page 182, line 30, after 52, insert (1) or (2).

This amendment would limit the exception in paragraph 5(2) of Schedule 9 (permitting discrimination in relation to training for work for which having a particular protected characteristic is an occupational requirement) so that it applies to discrimination only and not harassment or victimisation.
Amendment 71, in schedule 9, page 182, line 33, leave out 52(1)(b) or (c) or (2)(a) or (b) and insert 52(1) or (2).(The Solicitor-General.)

This amendment would expand the scope of the exception in paragraph 5(3) of Schedule 9 (permitting discrimination in reliance on a statement that a particular protected characteristic is an occupational requirement) so that it applies to all circumstances in Clause 52(1) or (2) giving rise to liability.

David Drew: I beg to move amendment 184, in schedule 9, page 183, line 25, leave out paragraph 8.

Ann Winterton: With this it will be convenient to discuss amendment 185, in schedule 9, page 183, line 35, leave out paragraph 9.

David Drew: I unashamedly have taken the amendment on from my hon. Friend the Member for Gateshead, East and Washington, West (Mrs. Hodgson). I am firmly of the opinion that she entered the Governments Whips Office as a result of her tabling the amendment, so I look forward to my own preferment in due course as a result of bravely treading where she has left off.
This is an important issue, and I hope not to delay the Committee for too long with a proper debate about the lovingly called national default retirement age. The amendment, which was tabled with the support of the Liberal Democrats, would remove the NDRA, and I will happily look at the implications of that. I recall a gentleman coming to see me at my constituency surgery around six years ago begging me to intervene in his case. He had achieved his ultimate ambition of getting a job with the Department for Environment, Food and Rural Affairs at the age of 63. The job was that of an animal control officer, which is not necessarily my idea of a nice job, but it was what he wanted to do, and he wanted to continue to do it. At 63 years of age, he was told by his employers that he could expect a very short time in the job. He was upset because he had hoped that he could continue for some time, not least because it was the first job he had ever had that paid a pension. That says something of what life is like even in the 21st century. I managed to get an extension of his working life to 67 but in due course he was asked to retire. Even that short time ago, that seemed to be the norm. Amendment 184 tries to remove the notion of compulsory retirement and amendment 185 would require notice to be given to someone that they will be compulsorily retired at least six months before they are 65. I hope that the amendments might become irrelevant because of an ongoing court case. My hon. and learned Friend the Minister may be able to say some things about that.
The Employment Equality (Age) Regulations 2006 ensured that people could not be discriminated against on the basis of their age in employment and occupation unless it could be objectively justified. Regulation 30 introduced the idea of a national default retirement age as an exception to the general rule of non-discrimination on grounds of age. That allows employers to operate a mandatory retirement age of 65 or over, allowing them to terminate the employment of a member of staff on the grounds of age. Employers can also refuse to recruit people over the age of 65, and that has been laid out in schedule 9 of the Bill. Before the law came into forces, a number of organisations, principally Age Concern, took a view. I declare an interest as a trustee of Stroud Age Concern. One has to play ones cards close to ones chest as we are not all that far away from the dreaded age of 65. I also think it is interesting that we can force our employees in the Houses to retire, when MPs do not face a similar prospect. Only the electorate can do that to them.

Diane Abbott: My hon. Friend makes the point that MPs cannot be forced to retire, but would it not be better if we were? It would provide opportunity for young, dynamic people to move into constituencies.

Ann Winterton: Order. I ask the hon. Gentleman to ignore that intervention. It was way out of order.

David Drew: I do not know whether that was on the grounds of sexism or ageism, but I will take your guidance, Lady Winterton, and carry on.
The charitys position is that the regulations are unlawful, both by introducing the NDRA and by giving employers far too much scope to introduce other age-based rules in the workplace. On the basis of that, the case was referred to the European Court of Justice in 2007. The final ruling of the Court on 5 March 2009 stated that the UKs retirement laws will only comply with the EU directive if they have a legitimate aim related to employment and social policy rather than simply to reduce costs for individual employers. The Court went on to emphasise that the UK Government will have to meet a high standard of proof in demonstrating that their policy aim is legitimate. The case is currently adjourned, as my hon. and learned Friend knows. We will receive the final verdict of the High Court hearing on 16 and 17 July 2009. It may be that what I am doing will be deemed irrelevant, because the High Court could say that we have to bring UK law in line with the EU. Much as I do not like saying such things, perhaps the EU could ride to our salvation.
Why is the issue important? In these days of fairness, justice and equality, it seems unfair that people approaching or at the age of 65 are always the ones who have to be made redundant on the basis that they should be retiring anyway. The issue is particularly important at the moment, with the recession taking hold. We all know and, indeed, have cases in which people are deemed to be expendable because of their age, yet they are often the most valuable people in their workplace. They have a lifetimes experience of employment, with all the expertise that goes with that. The situation seems very unfair.
The position also seems to be completely contrary to the Governments aims of encouraging us to retire later and therefore not to take our pension until later. I am not here to advocate the policy of eradicating retirement, much as the Government might think that that would be a jolly good thing because of all the money that it would save. At the same time, we are in the era of giving people some choice, and the Government would be keen if people wished to continue working and to forestall the payment of their pension.
Although the business lobby has misgivings, it is not entirely against the idea that there should be some debate and clarity, and, indeed, where such cases exist, individuals should be allowed the freedom to keep working. However, according to the Bill, they will not be able to do so. I am pleased to say that public opinion is ahead of us in Parliament, let alone ahead of the Government, and there is a growing swathe of opinion that it is right and proper for people to have the opportunity to continue working.
Mr. Harperrose

David Drew: I give way to my near neighbour.

Mark Harper: We would be very near neighbours if it were not for the River Severn, which divides us. The hon. Gentleman implied that the measure will prevent people from being kept in employment. All it says to employers is, If you want to get rid of someone at 65 because that is your mandatory retirement age, youll able to do so. It in no way stops them keeping someone in work for as long as they want. If that suits them and suits the employee, there is nothing in the Bill that stops them doing so.

David Drew: I hear what the hon. Gentleman says but, as so often with these things, it may be a question of perceptions, rather than the actual wording. He will have had cases, as we all have, in which there is an obligation, almost, to look at the oldest person in the work force, who may be close to retirement. Those people come under enormous pressure to be the sacrificial lambs when it comes to redundancy. That may well be something that that individual would welcome. However, I have always been worried that with the mania for early retirement, there is a cost that will come home to haunt us in due course. The corollary of that is that if people wish to keep working for longer and their employers see that as a jolly good thing, we should give every encouragement for that to be the case, yet what we face is at least the notionI will not say that it is necessarily always the realitythat we have a national default retirement age of 65.
The Government may have to resolve the issue themselves as a result of the High Court ruling, but it would be good to hear what the Minister has to say now. As always, I am trying to be helpful, to move with the spirit of the times and to see whether we can resolve the issue so that there is not any indirect ageism, whether we are talking about the perception that people have to retire at that age or whether it is stronger than that and the reality is that that is what happens. That is why I do not mind at all taking over from my hon. Friend the Member for Gateshead, East and Washington, West. It is good to have some support from the Opposition, and perhaps even Labour Members, on an important issue that could slip under the radar unless it is debated in Committee.

Lynne Featherstone: I will be brief because I think that the hon. Gentleman has made almost all the points I would like to make. However, I shall use this opportunity to speak because the measure flies in the face of the intent of the legislation. As the hon. Member for Forest of Dean said, the provision is not mandatory; it simply makes it legal for an employer to retire somebody without consequences. The measure is an exception in the Bill and it should not be an exception. One of the problems with centring the measure around a particular age is that it creates the attitude around that age that it is the end of the useful working period of somebodys life. That will therefore lead to discrimination and enable people to use that exception to terminate peoples employment.

Diane Abbott: I listened with interest to what my hon. Friend the Member for Stroud said. He talked about perception. We are in a Bill Committee and we have to rest our arguments on the letter of the law. There is nothing in the law as it stands to prevent an employer who wants to keep a member of staff on after 65 from doing so. My hon. Friends speech gave a different inference, but the letter of the law does not prevent employers from keeping on people after 65. What is more, many employers doparticularly when people have specific skills or experience. Some employers, such as the retailers Asda or B&Q, specifically recruit older people.
I am concerned about pretending that an employee of 70 functions in exactly the same way as an employee of 17. There is a case for mandatory retirement for staff after 65. Such a measure would be a piece of modernisation. During the Committee, it has been unusual for me to find merit in employers arguments, but I do find merit in their arguments on this matter. Even as we speak, many employers keep on people over the age of 65. I am concerned that if we do not think this through, under the guise of ending discrimination on age we will make it harder for younger people to get their first job.
I speak as somebody whose bias is all the other way. I am closer to 65 than to 17. The last person in the world to accept that they are not functioning the way they were when they were 17 is the person who is approaching 65. The current situation works well and it does not prevent employers from employing anyone beyond the age of 65 if they wish to do so. We should think carefully before altering that situation.

Vera Baird: I am pleased that my hon. Friend the Member for Stroud has raised the issue. There have been some interesting contributionsnot least the last one. Despite what my hon. Friend the Member for Hackney, North and Stoke Newington said about the need to bring young people on, even a default retirement age of 65 looks quite young now because 65-year-olds are not, by and large, failing in the way that she points to. That is perhaps not the point here, but I suspect that it is why this has become almost a totemic issue for the age lobby. People seem to be cut off while they are still in what they and other people might call their prime.
That default retirement age came in with some 2006 regulations that delivered significant other benefitsfor example, upper age limits on unfair dismissal and redundancy were abolished, and company retirement ages lower than 65 were put up to 65, unless the reason for retaining a lower one could be objectively justified. Schedule 6 to the regulations contains a statutory procedure that includes a right for an employee to request work beyond the age of 65, or the normal retirement age if higher. That has been referred to by my hon. Friend the Member for Hackney, North and Stoke Newington and the hon. Member for Forest of Dean. One of the aims was to strike a balance between tackling the age discrimination as it arises for individuals and allowing businesses to operate productively but fairly.
An obvious point is that that is a default retirement age, not a mandatory retirement age. However, the Government provided for the age on the basis of the evidence available in 2006. We have recognised that circumstances can change and we have made a public commitment, whatever happens, to review the default retirement age in 2011. As my hon. Friend the Member for Stroud said, there might be need for action earlier than that. The case brought by Heyday, which I think is the trading arm of Age Concern, went to the European Court, which held that the default retirement is available, but only if it can be justified by a legitimate social policy objective.
The case was sent back to the national court to determine whether the legislation in the UK accords with such an aim and whether the means chosen by the legislation were appropriate and necessary to achieve that. The Court said that establishing that would require a high standard of proof.
The case goes back to the High Court in July, but an immediate outcome is unlikely. It is much more likely that it will be autumn before the High Court delivers its judgment. If the Court decides that the default retirement age is not justifiedor, rather, was not in 2006, which is the precise questionthe Court is likely to make a declaration to that effect but not to strike out the regulation straight away, we think, or rather we hope. That would give us time to deal with all that follows and give business time to adjust to the changes.
In no sense do I brush aside the importance of the issue in inviting my hon. Friend to withdraw his amendment. What happens next will be determined by the case.

Mark Harper: The Solicitor-General highlights two different issues that have come up. The first is about a default retirement agethat conceptand the second is about whether 65 is the right age. The hon. Member for Hackney, North and Stoke Newington suggested and immediately leapt upon 70. Something that may be more sensible and which the Minister could think about for discussion on Report is whether, even if the default retirement concept stays, the actual age might be better addressed in regulations, rather than in the Bill.
The issue might need to be addressed because of the court case, but also may well be something that changes over time. Given that Government policy is to change the state pension agewe already know that that is in progressit might be sensible to keep the age under review even if the concept of the default retirement age were to stay in law.

Vera Baird: I can see that argument. It certainly occurs to me, as I made clear, that 65 is now quite a young age for such a provision. What I suppose would be of concern, even with a different age limit, was whether it was not simply ageist to go on using the persons age, which is quite different from their ability to do the job, as a way to get rid of them. However, I am told that we could change the default retirement age through regulations if we needed to do so, using section 2(2) of the European Communities Act 1972, so we do not need to put that in afresh.

David Drew: That was a useful debate. I know that we have a slight difference over the age profile, but the debate is one that needs to be aired. I hope that that issue will be clarified when we get the Court judgment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Featherstone: I beg to move amendment 246, in schedule 9, page 184, line 39, leave out paragraph 11.

An amendment to prevent discrimination in the level of minimum wage based on age.
The amendment follows the theme of whether it is justified to exempt young people so that they could have differential pay rates. My understanding is that as of 1 October 2008, there are three categories of hourly rate£5.73 per hour for workers aged 22 and over, a development rate of £4.77 per hour for workers aged 18 to 21, and £3.53 per hour for all workers under the age of 18 who are no longer of compulsory school age.
I have long thought that the variation in the minimum wage between 16 and 18-year-olds was iniquitous because the cost of things remains the same whether someone is 16 or 18. A person can get married at 16. Loaves of bread cost the same whatever a persons age. Therefore, the variation is totally discriminatory. I thought that the principle was equal pay for equal work. I do not fully understand why we allow such discrimination when in all other cases we say it is wrong to discriminate. I would like the Minister to justify the exemption.

Vera Baird: Removing the youth minimum wage rate would adversely affect employment levels for young people. Unemployment rates are higher for young people and employment rates lower. Both are far more sensitive to the economic cycle. We believe that continuing to participate in education or training until at least 18 is in the long-term best interests of people, but it is important that they have chosen to work rather than stay in education, do not lose their jobs or find it harder to access the important employment opportunities that get them into the world of work.
The exemption in paragraph 11, to which the hon. Member for Hornsey and Wood Green has addressed her amendment, will not allow an employer to pay different rates to employees who are within the age bandsbetween 16 to 17 and 18 to 21. We rely on the independent Low Pay Commission, whose report said:
Young people have continued to do less well in the labour market than older workers and are particularly vulnerable in an economic downturn. Therefore, we believe that lower National Minimum Wage rates for young people are still justified in order to protect employment and at the same time reflect the training element attached to younger workers.

Lynne Featherstone: I understand the argument. The Solicitor-General could say that women are paid poorly but if their wages were to rise they would have trouble finding part-time work. That argument could be extended to any group. One might believe that there should be equal pay, but because a particular group is vulnerable in a sensitive marketplace, they can be discriminated against and paid less. I understand the argument, but it is not one to which I am overly sympathetic. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 72, in schedule 9, page 188, line 17, at end insert
( ) section 38(1) and (3);.

This amendment would bring Clause 38(1) and (3) within the scope of paragraph 19(1) of Schedule 9. A principal would not then be liable under Clause 38 for discrimination or victimisation relating to the provision of a benefit, facility or service to the public (as in existing law).
Amendment 73, in schedule 9, page 188, line 26, at end insert
( ) in relation to section 38(1) and (3), the other contract workers supplied to the principal;.

This amendment would provide that comparable persons means other contract workers supplied to a principal, when determining whether provision of a benefit, facility or service by a principal to a contract worker differs in a material respect for the purposes of paragraph 19(3)(a) of Schedule 9.
Amendment 74, in schedule 9, page 188, line 32, at end insert
( ) the terms on which the principal allows B to do the contract work,. (The Solicitor-General.)

This amendment would provide that Bs terms means the terms on which the principal allows a contract worker to work, when determining whether the provision of a benefit, facility or service by the principal is regulated by Bs terms for the purposes of paragraph 19(3)(b) of Schedule 9.

Schedule 9, as amended, agreed to.

Sitting suspended.

On resuming

Clause 79

Application of this Chapter

John Mason: I beg to move amendment 100, in clause 79, page 59, line 37, leave out paragraph (c).
Hopefully, I shall be brief. The clause deals with education and schools, and specifically when discrimination is allowed. The purpose of the amendment is to seek an explanation of why pregnancy and maternity are not protected characteristics when it comes to education, and I am grateful to Liberty for its help. A woman who is treated less favourably because she is pregnant or has recently given birth is protected, so why is that protection not extended to younger women in schools? We all know that young mothers and expectant mothers canand doexperience discrimination and disadvantage at school, and there is research to support that. They are also less likely to have qualifications.
For starters, can the Solicitor-General reassure us that the Government do not intend that pregnant girls should be excluded from education merely on the grounds of their pregnancy? The explanatory notes state:
It is not unlawful discrimination for a school to organise a different timetable for a pupil who has a baby, to help her fit her education with her parenting responsibilities.
That is fine and good, but it seems an excessively wide exemption to achieve that end. After all, an employer might also organise a different timetable for a new mother returning to work to help her, and that would be acceptable and even encouraged. So why is a much wider exemption being given to schools than to employers? If such matters are not covered by the Bill, will the hon. and learned Lady reassure us that protection will be provided in some other way?

Evan Harris: I keenly support the amendment. Further to what the hon. Gentleman has said, the explanatory notes are quite strange. They state that it is not unlawful discrimination
for a school to organise a different timetable for a pupil who has a baby, to help her fit her education with her parenting responsibilities.
The implication is that, if pregnancy and maternity were deleted from the clause as proposed under the hon. Gentlemans amendment, in some way schools would be prevented from taking such action. That is not right. I accept that it is not necessarily the argument of the Solicitor-General. Perhaps she will argue, as she did before, that the discrimination that we want to oppose is already covered under another heading, but I should be grateful if she clarified whether that is the justification. If it is, it would also not be unlawful for a school to refuse to admit a girl pupil who is pregnant or who already had a baby. Although that might be the position under current legislation, we should not permit schools to discriminate against pregnant pupils or pupils with babies in respect of admission, exclusion or any other detriment. I am concerned that the clause allows schools to do that, even if guidance and the public sector duty might discourage them from doing so. The Government are under a burden to show that the inclusion of paragraph (c) is justified. I look forward to hearing from the hon. and learned Lady.

Vera Baird: It is not through discrimination legislation that pregnant schoolgirls or young mothers will get the help that they need, but through sensitive handling by the school. There is an absolute bar on pregnancy as a ground for exclusion. No schoolgirl should be excluded for getting pregnant. A teenage pregnancy strategy ensures that pupils receive support and tuition to complete their education, and dedicated reintegration officers work with schools and pupils to advise on the best way to accommodate and re-engage them in education. In addition, the new public sector duty will ensure that schools have regard for pupils who become pregnant. We feel that it is most appropriate to protect that category of person through that mechanism and other protections.
I do not totally follow the point of the hon. Member for Oxford, West and Abingdon about the explanatory notes. When I do, I will drop him a line.

Evan Harris: I will not pursue that point. I assume that something in the corresponding schedule makes it clear that one cannot exclude a pupil on the grounds of maternity under sex discrimination provisions. However, the Solicitor-General did not say why that was. She did not address my example of admission. Notwithstanding the public sector duty, a school would have the right not to admit a pupil simply on the basis that she was pregnant under discrimination law. As such a person would not be the schools pupil, which is the term the Solicitor-General used in explanation of the public sector duty and the teenage pregnancy code, it is not clear why the school could not do that. I do not see why we should not use the opportunity of discrimination legislation to deal with that issue if we can. I would be grateful if she addressed the issue of admission.

Vera Baird: We are talking about somebody who gets pregnant while they are at school. The hon. Gentleman is talking about somebody who moves school. That would be facilitated by reintegration officers. We do not think that discrimination law hits the spot. It is certainly not in the schedule that exclusion is not available for pregnancy. However, education law sets out clearly that that is not a ground for exclusion. I do not think that there is an issue here, but it is good to probe the matter. There is plenty of law that covers this matter, as well as policies and guidance.

John Mason: I thank the Solicitor-General for the reassurances she has given. I still feel that the amendment would strengthen the position of women in such circumstances. However, I accept her reassurances and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 ordered to stand part of the Bill.

Clauses 80 to 83 ordered to stand part of the Bill.

Schedule 10

Accessibility for disabled pupils

Question proposed, That the schedule be the Tenth schedule to the Bill.

Mark Harper: I hope that this will be a brief debate. I have a few quick questions for the Minister. By raising this issue here, we will not have to discuss it under schedule 15. There is a difference between the provisions on the duty to make reasonable adjustments for disabled people in the education section and the main section of the Bill. In the main section, the duty to make adjustments has three requirements. The first is that somebody is at a substantial disadvantage, and the second relates to physical features. The difference comes with the third, which is to provide an auxiliary aid. Clause 80 in part 6 simply has a duty to make reasonable adjustments that applies to the responsible body of such a school, without those three parts being explained. Effectively, there is a carry-across of existing legislation, which has no current requirement to deal with auxiliary aids.
The issue has been raised with me by the Disability Charities Consortium. When I investigated the matter, the answer given to me was that the reason for the difference in provisions was that schedule 10 provides for accessibility arrangements for pupils in schools. My question to the Minister is simple: given the need to provide for accessibility arrangements in schools and for schools to have a written accessibility plan under which they discuss with their disabled pupils their needs and requirements, will schools, in making those reasonable adjustments, effectively have to consider providing auxiliary aids, even under the education requirement, as the general duty to make adjustments applies in other arenas? That is the question and my reason for raising it now. If I have not been clear, the Solicitor-General should let me know, and I will try again.

Vera Baird: The hon. Gentleman is clear. The development and implementation of an accessibility plan will give a more proactive and strategic approach to facilitating education for disabled pupils and improving the physical environment. Schools and authorities will be able to plan ahead and anticipate a range of disabled pupils issues and needs in order to have facilities in place, instead of having to react to one individual situation at a time.
Schools will have to have considered the need for auxiliary aids and services for disabled pupils as part of their responsibilities under the duty. In addition, it is likely that an individual disabled child who required auxiliary aids would fall within the definition of special educational needs, so the aids would be provided under that regime. We think that it is probably covered more effectively there.

Mark Harper: I am grateful to the Minister for that reassurance. The purpose of raising the issue was to put that assurance on the record. I think that I am reassured by her reassurance.

Question put and agreed to.

Schedule 10 accordingly agreed to.

Clause 84

Interpretation and exceptions

Question proposed, That the clause stand part of the Bill.

Evan Harris: I want to raise an issue identified by the Joint Committee on Human Rights with respect to clause 84, which apparently widens the existing exemption for the curriculum. Subsection (2) states:
Nothing in this Chapter applies to anything done in connection with the content of the curriculum.
That appears to remove any restriction on discrimination against a pupil on any protected characteristic in respect of the content of the curriculum. That is of concern.
The explanatory notes state:
This ensures that the Bill does not inhibit the ability
of schools
to include a full range of issues, ideas and materials in their syllabus and to expose students to thoughts and ideas of all kinds.
That is wider than the exemption in schedule 3 from the prohibition on religious or belief-related discrimination in the provision of services in relation to anything done in connection with the curriculum of any school. There is an argument and a debate to be had about the exemption for religion in respect of the curriculum, but I want to consider how the measure appears to be drawn more widely and seek clarification.
Current law provides the exemption for the content of the curriculum from the prohibition of discrimination on the grounds of religion or belief. That stems from the Equality Act 2006. However, the provision is wider. I can understand that some people might argue that given that the curriculum includes religious education, there needs to be an exemption in respect of religion or belief. I am not convinced that that is required. I will not go into why, as now is not the time, but the concern is that it appears that the prohibition on discrimination on the ground of sexual orientation, for example, will not apply to the content of the curriculum.
The worry is that even if one has injunctions on how the curriculum is delivered, its mere content, particularly when there is no national curriculum on religious education, for example, might lead to detrimental treatment of pupils of a different sexual orientationhomosexuality, one presumes. The issue is the curriculum itself, or the textbook, not how the curriculum is delivered. Therefore, there is already a concern that sexual orientation might not be adequately covered, even under the existing exemptions, and the catch-all provision seems to go further.
The explanatory notes state that concerns such as the one I have raised would be caught because
The way in which the curriculum is taught is...covered by the reference to education in clause 80(2)(a),
which states that the responsible body of a school must not discriminate against a pupil
in the way it provides education for the pupil.
In other words, it must
ensure issues are taught in a way which does not subject pupils to discrimination.
However, I am worried that that is trumped by clause 84(2). For example, a gay pupil might feel that they were being taught that they were of less moral worth because of an inherent characteristic, but they might not be able to invoke any of the protections in the Bill in the face of such a wide exemption. Given that the provision appears to cover all schools and all strands, I do not think it is required for religious schools to maintain their ethos. I would be grateful if the Minister was able to clarify her understanding of clause 84(2).

Vera Baird: As the hon. Gentleman said, clause 80 will provide protection for children to ensure that the curriculum is taught in a way that does not subject pupils to discrimination. Clause 84 replicates a provision in the Equality Act 2006 and extends it to other protected characteristics. This is about clarifying the full educational freedoms of schools to decide what resources to use so that they will not have to justify or defend themselves from accusations of discrimination when they are following a reasonable and balanced approach to a curriculum. If we do not include the exemption, it would be possible for schools to be faced with cleansing the curriculum itself for indirect discrimination. For example, it would be very uncomfortable if a Jewish boy made a claim for discrimination for being taught The Merchant of Venice. It would be difficult for a school to cope with that, and it would get bogged down in having to justify itself. Whatever is taught needs to be taught appropriately, and teaching practices need to be fully inclusive. It is not the Bills intention that schools should be barred or discouraged from teaching the full curriculum with ideas that challenge pupils and lead to open and honest discussion and contemplation, which is why we think the clause is necessary.

Evan Harris: I think that the Minister accepted that this was an extension of the existing law, and she gave a justification for the provision in the Bill. Is there evidence that before this attempt to extend the existing exemption of the curriculum to all strands, claims were made against schools about ideas in the curriculum that might, as she says, be challengingI am all in favour of that form of education? If there was no problem before, providing a wide exemption might enable some schools with a specific agenda to get a message across outwith the provision on discrimination through the way in which children are taught or the curriculum is delivered.

Vera Baird: The pressures were from the religion and belief sector, and we dealt with those. We did not envisage that the curriculum was covered prior to 2006 by discrimination legislation, but we are now making it absolutely clear that it is. Does that help?

Evan Harris: I suppose it helps to explain why the change is being made. However, I hope that the Committee will reflect on whether potential for mischief is being created in respect of the wide exemption due to the lack of clarity in determining what is curriculum and what is the delivery of the curriculum. If the problem is a challenging idea, one would expect that to be delivered to the pupil through education. My concern is that we will be muddying the waters rather than keeping clear restrictions on what schools should be doing in sensitive areas such as race and sexual orientation.

Question put and agreed to.

Clause 84 accordingly ordered to stand part of the Bill.

Schedule 11

Schools: exceptions

Evan Harris: I beg to move amendment 253, in schedule 11, page 198, line 31, leave out paragraph 5 and insert
5 (1) Section 80(1) and (2)(a) to (d), so far as relating to religion or belief, does not apply in relation to
(a) a school, other than an academy, registered in the register of independent schools for England or for Wales, if the schools entry in the register records that the school has a religious ethos;
(b) a school in the register of independent schools for Scotland if the school admits only pupils who belong, or whose parents belong, to one or more particular denominations;
(c) a school registered in that register if the school is conducted in the interest of a church or denominational body.
(2) Section 80 (2)(a) to (d), so far as relating to religion or belief, does not apply in relation to
(a) a school designated under section 69(3) of the School Standards and Framework Act 1998 (foundation or voluntary school with religious character);
(b) a school transferred to an education authority under section 16 of the Education (Scotland) Act 1980 (transfer of certain schools to education authorities) which is conducted in the interest of a church or denominational body;
(c) a school provided by an education authority under section 17(2) of that Act (denominational schools);
(d) a grant-aided school (within the meaning of that Act) which is conducted in the interest of a church or denominational body..

This amendment would ensure that discrimination in admissions by religion or belief in state maintained schools and academies with a religious character is subject to the general prohibition on discrimination in education admissions.

Ann Winterton: With this it will be convenient to discuss amendment 254, in schedule 11, page 199, line 7, leave out paragraph 6.

This amendment would remove the exemption for acts of worship from Clause 80(2)(a) to (d), which makes it illegal for schools to discriminate in their treatment of pupils.

Evan Harris: As the Members explanatory statement says, amendment 253 is an attempt to argue that there should be no discrimination on the ground of religion in admission to state schoolsand to academies, which are state schools for the purposes that concern us here. I wish to question the Governments justification for allowing schools to discriminate on the basis of religion. My concern is that the legislation would breach the human rights of individualspupils and their parentsto gain access to education without discrimination.
The Minister will be aware that the Bill generally puts a bar on discrimination. However, the exception provided in schedule 11 enables schools with a religious character or ethos to discriminate on the ground of religion or belief in relation to admissions. A similar exception is made to the prohibition on discrimination for those with a religious or belief strand in respect of the provision of services. As a result, faith schools, particularly those that are oversubscribed, can give preference through additional admission criteria to members of their own religion. For example, it means that Church of England schools can give priority to pupils or parents who are members of the Church when choosing applicants for admission, and can therefore reject the children of parents who are not members.
I do not know of any school that rejects pupils because their parents are religious and gives preference instead to pupils whose parents are not. This is not a balanced or reciprocal form of discrimination. The consequence, in areas where there are a lot of religious schools, is that parents who are not religious have fewer choices of school for their children, if those religious schools discriminate against them, than parents following the religion of the school concerned.
If an area has five schools, four of which are religious, and if those four schools discriminate against people who are not religious, only one school will not discriminate against the non-religious person, whereas the religious pupils, assuming that they are not discriminated against by other religions, will have a choice of five schools. Indeed, if the last non-faith school was closing in an areaI believe that there are such areasit would have serious implications for fairness to pupils of parents who are not religious.
The question is whether that is a clear breach of the Human Rights Act 1998. There is no doubt that admission criteria that give preferential treatment to children of one religion, if I may use a shorthand phrase, and detrimental treatment to children of another religion or none, require objective and reasonable justification in order to be lawful under article 14 of the convention, taken with protocol 1 of article 2. The problem is whether that justification is met.
The matter has been explored by the Joint Committee on Human Rights in correspondence with the Government, which has been published, and in notes that were provided. The Governments arguments rest on two grounds. The first is that such a provision is a way to meet the human rights of parents under article 14 and, in particular, protocol 1 of article 2, but that is a wrong assertion in law. We know that parents cannot rely on that protocol to get a school that is in line with their religious ethos. They cannot rely on it to force the state to provide a school of their religious ethos, so one cannot justify the provision by claiming that they were exercising that right.
The other argument that the Government have used is that plurality of provision is maintained by allowing schools to discriminate on the basis of faith. There are two problems with that, to which I would like the Minister to respond. One is that there are plenty of faith schools that do not discriminate, yet they are still faith schools. It is hard to identify why it is that if schools maintain their ethos without discrimination, they rely on discrimination to maintain their ethos.
Secondly, even if that is shown to be correct, is it appropriate to consider the allegedly positive public policy in isolation from the detrimental public policy implications of a school admissions system that discriminates, because systems that discriminate against pupils on the grounds of religion will tend to exacerbate the segregation that often already exists? I am not arguing that segregation in our cities is solely or even wholly due to faith school discrimination. There is clearly segregation in housing and communities, but it cannot make sense, particularly in those settings, to segregate further by allowing pupils from further afield to get into a school to the detriment of pupils from the local area who might otherwise be the only non-white or the only white pupils in that school. That is a public policy problem and I do not think that it has ever been recognised by the Government. It needs to be balanced with any public policy benefit that they seek to cite to legitimise and give objective justification for detrimental treatment that clearly exists under the Human Rights Act.
My and my partys view is that faith schools existno one is arguing that they should be closed down or even transferred to community status, or indeed that there is no call for new schools with a religious ethos. However, there should be no justification for segregation and further discrimination against pupils who happen to have parents of the wrong religion or no religion. Sooner or later, the matter will be tested in human rights law, and it seems only appropriate to use discrimination law, which exempts schools, to challenge the Governments justification for the provision.
The second amendment relates to the exemption under clause 80(2) for acts of worship. My party and I think that requirements for a daily act of collective worship in schools, mainly Christian in character, are inappropriate. Schools are not the place where pupils should be forced to pray, and although the Government have provided a limited exemption for sixth form pupils not to be forced to pray, the Joint Committee on Human Rights does not believeas the Government knowthat that goes far enough in respecting the rights of pupils to have regard to their freedom of religion themselves.
It seems wrong to force a child who is otherwise competentGillick and Fraser competentto make decisions about their personal and sexual health without reference to their parents to rely wholly on a parental opt-out from being forced to pray to a god they might not believe in. There is a parental opt-out but not an opt-out for the child. The way round this would be for collective worship in schools to be entirely optional.
I am all in favour of there being Christian unions and other religious clubs in schools where religious pupils can seek comradeship and worship together, but to make it a compulsory part of the school day with no injunction on schools forcing it on pupils seems wrong. The purpose of the amendment is to see what justification the Government can give for using state schools to impose worship, and therefore in effect religion, on pupils. The Minister knows that some schools find that extremely hard to deliver, and Ofsted often overlooks it in order that the status quothe comfortable compromisecan be maintained. We have seen instances in the media of individual pupils objecting to being forced to pray at school and not being able to avail themselves of a parental opt-out. In any event, why should the onus be on the pupil to opt out of compulsory prayer, when the job of the school is to educate them, including in religious education, but not to force them to pray against their will?
My party has long been opposed to what has often been described, and what can often be, a mass act of hypocrisy every morning, when people do not really participate in prayers but simply go through the motions. Many religious people feel that collective worship is no longer appropriate in schools because it breeds insincerity, as does the religious test in admissionssometimes, parents pretend to be religious to get their child into a good school.
Finally on amendment 253, do the Government recognise that when parents attend church just to get their child into a faith school, given the evidence that faith schools are no better than non-faith schools once one adjusts for proxies of poor educational background such as free school meals, essentially social selection is taking place as well? That is another public policy detriment that needs to be weighed against any public policy justification that the Government can give for what would otherwise be unlawful discrimination under the Human Rights Act.

David Drew: I am aware of the hour, but I can take only so much from the hon. Gentleman. The notion of a faith school to which people of that faith are effectively the only people who cannot go is a complete contradiction. There need not be a discriminatory process because, from all the evidence I have seen, faith schools tend to want to take children of different faiths. Certainly, they want to take children of different classes, but they are too often prevented from doing so because of numbers.
The hon. Gentlemans argument is illusory if not delusional. Some of us hold faith as important and it is wrong to segregate and marginalise it. If people do not want to go to a school, they are not forced to go there. There are ifs, buts and maybes, but I am dealing with the reality on the ground. Of course, people have a perfect choice to vote for people who want to increase the secular provision, as they do to vote for those of a religious faith, be that Christian, Muslim, Jewish or whatever.

Evan Harris: I am listening carefully to the hon. Gentleman. I want to make it clear to him that the amendment does not say that faith schools must deny admission specifically and only to children of their own faith; it is saying that there should be no religious discrimination in admissions. There should be a level playing field for everyone. The status quo means that a school can say to a child, You cant come to this state school next door to where you live because you are a Jew. We are over-subscribed and we are only going to take children of parents who are Christians in this school. That cannot be right. Does he think it is right? That is the status quo in some schools at the moment.

David Drew: From my experience, that is not the status quo. I think that schools are exceedingly careful with their admissions. If they are discriminatory, they can be hauled over the coals accordingly. I am arguing that there is not a level playing field. If someone wishes to send their child to a faith school, and they are of that faith, it is perfectly reasonable for them to feel that that argument should be advanced and understood within the education system.
I come to my other point about collective worship. We all know that very few schools meet the requirement in the Education Act 1944 for daily, collective, Christian worship. In some schools, that is impossible because the dominant faith is not Christianity, even though it might be a Christian school. As I have said before, we need tolerance. If a child has no faith, or their parents wish them to have no faith, they can be withdrawn from particular assemblies or religious gatherings. I think that is the best way to proceed. I worry that we seem to be going to the other extreme: anyone who wants to do anything religious is so hamstrung and fetteredeven if they are notionally in a faith establishmentthat a ridiculous situation might arise in which they will feel so intimidated that they are unable to do anything. That would be a sad day. I am in favour of people having choice, but that should include having the choice to hold a faith, as well as a choice not to have one.

Vera Baird: Probing the Governments thinking is fairly redundant, because we did it two years ago on the 2006 Act. Nothing has changed in our stance, and there is nothing different in that of the hon. Member for Oxford, West and Abingdon.
The position simply is that, in order to maintain their special ethos, faith schools need to be able to teach in a way, and have an admissions policy, that reflects that ethos. We are comfortable that the European convention on human rights is, if anything, buttressed by the Bill. Some people might not like faith schools, but they are here to stay. The key exception is that they have admissions that allow them to operate as they currently do. We do not think that amendment 254, on worship, is appropriate. As the hon. Gentleman well knows, parents can remove their children from worship, and the children can remove themselves if they are in the sixth form. We do not have a problem with that boundary.

Evan Harris: Will the Minister give way?

Vera Baird: Let me finish. The only point of the amendment might be to make it obligatory for faith schools to provide an alternative act of worship, so that if, for example, a Jewish or Muslim school did not provide a Christian facility, an allegation of discrimination could be brought against it. We do not think that that is appropriate, so we invite the hon. Gentleman to withdraw his amendment. He has an opportunity to speak now, so I do not need to give way.

Evan Harris: The Minister does not have to give way ever. It is just scrutiny as we know it. It is up to her, if she chooses not to give way all the time, although she has generally been very good at doing so. She has been very patient with us asking questions, whether difficult or otherwise. I wanted to ask herI guess I shall not have the chance nowin what way she feels that this discriminatory exemption buttresses human rights. She did not show that to be the case; I do not think that she can point to any convincing Strasbourg case law that shows that people can exercise the right to have a school open in their area that matches their religious convictions. On the other hand, there is clearly the right for a person not to be discriminated against in accessing education for their children. She did not address the point about the inequality for children of a minority religion when there is no faith school in their area or for children of parents with no religion who have less choice than others.
I also wanted to ask the Minister how she can justify telling a 16-year-old girl who is not in the sixth form, who does not want to take part in prayerif prayer is to mean something, such a person ought not to take part, otherwise they could be disruptivewho has control of her fertility and who can access sexual health services without her parents knowledge, that she is powerless, unless in the sixth form, to excuse herself from compulsory prayer. The Government have never satisfactorily answered that pointnot now, not during the passage of education Bills and not during the passage of this Bill. The Minister is not minded to rise, but the record will show that that question, and others, remain unanswered. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 11 agreed to.

Clauses 85 to 89 ordered to stand part of the Bill.

Schedule 12

Further and higher education exceptions

Question proposed, That the schedule be the Twelfth schedule to the Bill.

Evan Harris: I rise to raise one point about the schedule, which is listed on the amendment paper as amendment 270. Amendment 270 has been starred and has not been selected. It seeks to insert

Ann Winterton: Order. I am afraid that the hon. Gentleman cannot debate a non-starred amendment.

Evan Harris: On a point of order, Lady Winterton. I am quite happy not to refer to the amendment, but I want to raise the point that I wanted to make as I would have raised it anyway in the schedule stand part debate. What I was seeking to do by tabling the amendment was to raise the fact that I wanted to ask a question about the schedule. I do not see how I can raise a question about the schedule if I cannot raise it in the schedule stand part debate. If you do not want me to refer to the amendment paper today, I am more than happy not to refer to it.

Ann Winterton: The hon. Gentleman can speak on the schedule as long as he does not refer to amendment 270 in any way.

Evan Harris: In schedule 12, there is a provision on page 202 that I would like to draw to the attention of the Committee. I believe that there has been a serious omission in relation to the provision of further education. Previous legislation was always very clear that the words only in so far as it was necessary existed in the equivalent of paragraph 5(1)(b) of schedule 12 to this Bill. After the words it does so in paragraph 5(1)(b) of schedule 12, the words in so far as it was necessary would have been included, before the words
to preserve the institutions religious ethos.
In brief, therefore, the absence of those wordsin so far as it was necessaryseems to amount to a widening of the exemption here and it is not clear whether that was ever presaged in any consultation and it is also not clear what the original intention of paragraph 5(1)(b) of schedule 12 was. I think that the statutory instrument concerned was No. 437, which provided regulation 21b in the old formulation, and was disapplied,
in so far as it is necessary for an institution to give preference in its admissions to persons of a particular religion or belief in order to preserve that institutions religious ethos.
I understood that to mean that there must be a necessary causal link between preferential admissions and preservation of ethos. The words from SI No. 437 are just not there now in schedule 12 and therefore there is a significant reduction in protection for people who may now be discriminated against.
I could give background information about Roman Catholic colleges, but I do not think that I need to as I think that I have made my point. I have made it to give the Minister an opportunity to say whether she thinks that there has been a lessening of the protection and, if so, what the justification for that is. If she does not think that the protection will be lessened, I would be grateful if she could clarify why not, given the significant change between the version of the provision in the schedule and the one in previous regulation.

Vera Baird: We have returned to the 2003 regulations; there is no change from those. Preference may be given to a child of the same faith in order
to preserve the institutions religious ethos.
The test is objective, not subjective. There is a clear causal link between giving preference to a child and the preservation of the schools religious character. There is no lessening of the protection.

Question put and agreed to.

Schedule 12 accordingly agreed to.

Clause 90 ordered to stand part of the Bill.

Clause 91

Qualifications bodies

Question proposed, That the clause stand part of the Bill.

Mark Harper: I shall endeavour to be brief. The clause concerns qualifications bodies and will make it unlawful to discriminate against, harass or victimise people in making arrangements for deciding on whom to confer qualifications. It carries across an existing provision in law.
Concerns have been raised by the National Deaf Childrens Society on behalf of deaf children as well as by the Royal National Institute of Blind People. Those organisations point out that disabled people are twice as likely as non-disabled people to have no qualifications. Of those disabled people without qualifications, only 23 per cent. are employed. That is in stark contrast to non-disabled people without qualifications, of whom 60 per cent. are employed. Having a qualification is clearly important, and it is vital that the examination system is accessible.
I raise the point because at the moment, the Bill proposes to replicate provisions in the Disability Discrimination Act that place a duty on qualification bodies offering general qualifications to make reasonable adjustments for disabled students. It will give new powers to the qualifications regulatorOfqual in England, and others in Wales and Scotlandto decide what adjustments would not be reasonable and what parts of the qualification are not subject to reasonable adjustments.
I will give a couple of examples of my concern and leave it at that. Also, I wanted to flag up to the Minister that I have tabled an amendment to schedule 19 that would extend the public sector duty to Ofqual, so that it would not just have to make reasonable adjustments but have a positive duty to promote the interests of disabled people.
My purpose is to raise with the Minister some of the concerns of those organisations. Despite the fact that existing law will carry through into the Bill, there are a lot of examples of deaf candidates, in particular, finding that qualifications providers are not making reasonable adjustments for them to get qualifications and are not thinking creatively enough about how they could test ability and learning rigorously, thereby protecting the value of the qualification.
One exampleI will leave it at oneinvolved a profoundly deaf candidate who was asked a question about listening to music on his GCSE English exam. He had never experienced music and so was not familiar with how people enjoy and talk about it. That question was not necessarily appropriate for a deaf student. He could easily have been asked to demonstrate his English ability without being asked that inappropriate question.
Although I said that I would give one example, I will give one more, and that really will be it. GCSE music tends to highlight a number of issues. One example involved a family whose son is profoundly deaf and uses a cochlear implant. He is selecting his options for GCSE and wishes to do music. The school uses the Edexcel exam board, 40 per cent. of whose music GCSE is a listening exam. The family want him to be able to study music, and they want the exam board to think about ways for him to do alternative work because of his hearing impairment. That could be dealt with in a range of ways, given that he has a cochlear implant, but he is basically being told that unless he can listen to CDs and answer questions, he should not really be studying that subject at all.
I accept that there are cases in which nothing can be done, but schools do not seem to be thinking creatively enough. I wanted to raise that issue in respect of the clause and to flag up the fact, in looking at the public sector equality duty in respect of schedule 19, that rather than just having the provision on reasonable adjustments, by placing the public sector equality duty on the qualifications regulator, there will be a positive duty to work with disabled people and those with the other protected characteristics to deliver a more inclusive system, while still protecting the value and rigour of the qualification. Has the Minister anything to say about those examples and how we might tackle the problem and disadvantage for disabled people?

Vera Baird: Those examples seem quite gross. We do not have provision in legislation to command regulators to think creatively. I think it is a matter of what is a reasonable adjustment. I take it that the hon. Gentleman is not concerned about the balance between what is adjusted and what is not. He is just saying that people are insufficiently imaginative, when it comes to reasonable adjustments, with some aspects of disability. The long and short of it is that the court will have to decide on judicial review whether sufficient adjustment has been made for the individual. I can only echo what he says. One hopes that this provision will not have a depressing effect on creativity and the way education is delivered to the disabled, but will strike a balance, allowing it to have a positive effect. When we come to schedule 19 we might hit the nail more firmly on the head when we talk about the equality duty.

Question put and agreed to.

Clause 91 accordingly ordered to stand part of the Bill.

Clause 92

Interpretation

Amendments made: 75, in clause 92, page 70, line 6, after a, insert relevant.

This amendment and amendments 76 and 77 would make in relation to educational qualifications corrections corresponding to the corrections that amendments 62 and 63 would make in relation to work qualifications.
Amendment 76, in clause 92, page 70, line 7, after a, insert relevant.

See the explanatory statement for amendment 75.
Amendment 77, in clause 92, page 70, line 7, at end insert
( ) A reference in section 91(8), (10) or (11) to a qualification is a reference to a relevant qualification.. (The Solicitor-General.)

See the explanatory statement for amendment 75.

Clause 92, as amended, ordered to stand part of the Bill.

Clause 93 ordered to stand part of the Bill.

Schedule 13

Education: reasonable adjustments

Lynne Featherstone: I beg to move amendment 202, in schedule 13, page 203, line 19, at end insert
(2A) For the purposes of this paragraph, the reference in section 19(3), (4) and (5) to a disabled person is to disabled persons generally..

An amendment to ensure that the anticipatory nature of the duty to make reasonable adjustments is retained in education as in the Disability Discrimination Act by providing that the duty applies to disabled persons not only to an individual disabled person.
The amendment is on the matter of reasonable adjustments. It is a departure from the original language on reasonable adjustments in the services and functions, private clubs and education provisions of the Disability Discrimination Act 1995. My understanding is that the phrase disabled persons must direct attention to features which impede persons with one or more kind of disability. We are aiming not simply for an education establishment to anticipate the needs of an individual who would have impairments requiring specific reasonable adjustments. The wording of the Bill needs to include the fact that it is about a class of disabilitiesfor example, being mobility-impaired or visually impairedand about making reasonable anticipatory adjustments so that someone who has that disability and belongs to that group, will not need to arrive at the school and then ask for that adjustment to be made; it will already be there. The EHRC says:
This is a critical underlying aspect of the reasonable adjustment duties and failing to address this in education would be regressive.
Therefore, I am seeking the Ministers response to see if there is any room to oblige on that matter.

Vera Baird: Let me confirm that schedule 13 provides for the anticipatory provisions that the hon. Lady seeks, but they are drafted differently from the DDA and differently from hon. Members proposals.
I agree with the hon. Ladys desireshe was taking the provisions in the DDA that make the adjustment requirements anticipatory. They need to be made for disabled persons and not just for a specific disabled person. In short, I hope she will take it from me that we are confident that the provision she seeks is already present in schedule 13.

Lynne Featherstone: I thank the Minister. If that is covered in schedule 13 and there is no question about it, as the Minister has said and put on the record, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 13 agreed to.

Clause 94 ordered to stand part of the Bill.

Schedule 14 agreed to.

Clause 95

Application of this Part

Amendment made: 78, in clause 95, page 70, line 26, leave out subsection (3).(The Solicitor-General.)

This amendment is consequential on amendment 90.

Clause 95, as amended, ordered to stand part of the Bill.

Clauses 96 to 98 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. (Lyn Brown.)

Adjourned till Thursday 25 June at Nine oclock.